The opinion of the court was delivered by: VAN ARTSDALEN
VAN ARTSDALEN, District Judge.
Defendants are charged with a violation of interstate gambling laws. They are alleged to be involved in a conspiracy to obtain gambling information and accepting wagers on national sporting events. Attached as Exhibit # 1 is a complete list of all motions filed on behalf of the various defendants. The motions are largely based on similar allegations. I will, therefore, consider the motions jointly. To the extent that any motion raises an allegation unique as to the other defendants, I will consider it separately.
All defendants have filed motions for discovery and inspection pursuant to Rule 16, F.R. Crim. P. (1968). By my order of March 2, 1971, as amended March 12, 1971, a complete copy of the intercepted communications was made available to all defendants. Further, defendants and their counsel have been furnished with or given a reasonable opportunity to inspect and copy all material in the possession of the government contemplated by Rule 16(a). To the extent that any of the motions contemplate discovery and inspection of internal government documents and reports or the statements of government witnesses or the recorded testimony of witnesses, other than the defendants, before a grand jury, those motions will be and are hereby denied. See title 18, U.S.C., Section 3500(a) (1968).
All defendants have filed Motions for a Bill of Particulars. Count I of Indictment # 70-454 charges a conspiracy to commit offenses in violation of title 18, U.S.C., Section 1952.
"It was the object of said conspiracy that the defendants would carry on and facilitate the carrying on of an unlawful activity consisting of a business enterprise involving gambling offenses in violation of the laws of the States in which such offenses were committed, namely: Title 18, Purdon's Pennsylvania Statutes Annotated, Section 4607; Title 2A, New Jersey Statutes Annotated, Section 2A:112-3; Chapter 10, California Penal Code, Section 337a; Article 225, New York Penal Law, Section 225.05.
"It was the further object of said conspiracy that the defendants would use interstate telephone facilities and would cause interstate telephone facilities to be used with intent to carry on and facilitate the carrying on of said unlawful activity and that the defendants would thereafter perform and cause to be performed acts to carry on and facilitate the carrying on of said unlawful activity."
Forty-four overt acts are specified in that count which particularize the conspiracy to the various defendants. Having read the indictment, I find it to be sufficient in that it informs each defendant of the nature of the charge against him. Rule 7(f), F.R. Crim. P. (1968), leaves this matter to the discretion of the court. United States v. Cudia, C.A. Ill. 1965, 346 F.2d 227, cert. denied, 382 U.S. 955, 86 S. Ct. 428, 15 L. Ed. 2d 359; United States v. Jaskiewicz, D.C. Pa. 1968, 278 F. Supp. 525; United States v. Stein, D.C. Pa. 1966, 249 F. Supp. 873 (see also cases cited at pp. 476-477, 18 U.S.C., F.R. Crim. P., Rule 7, ann. # 359, 1966; also 1971 pocket part, p. 31). I find the indictment to be sufficient and therefore defendants' motions for a Bill of Particulars are hereby denied.
Most of the defendants have moved for a separate trial. Rule 14, title 18, U.S.C., F.R. Crim. P. (1968), Rule 14, is directed to the sound discretion of the court. The purpose of the Rule for Relief from Prejudicial Joinder appears to be to promote economy and efficiency and to avoid a multiplicity of trials, where this objective can be achieved without a substantial prejudice to the rights of defendants to a fair trial. Bruton v. United States, No. 1968, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476. (See cases cited at ann. # 15, title 18 U.S.C.A., F.R. Crim. P., Rule 14, page 650; 1971 pocket part p. 59). In the recent Third Circuit case of United States v. Barber et al., 442 F.2d 517 (C.A. 3rd 1971), filed April 14, 1971, the court had occasion to point out that a severance is within the discretion of the trial court. It appearing that all defendants are charged with a conspiracy as set forth in Count I of Indictment # 70-454 and particularized by the overt acts therein set forth, no defendant will be unduly prejudiced by a joint trial. United States v. Barber, supra. The defendants' argument that they will be prejudiced by a trial with some 15 other defendants simply because of the number of defendants lacks sufficient merit and this matter can be handled by special interrogatories to the jury. Defendants' motions for severance are hereby denied.
Defendants' motions to dismiss the indictment are found to be without merit and are, therefore, denied.
MOTION TO DISMISS WIRE TAP EVIDENCE
An evidentiary hearing was held on the defendants' motion to suppress certain intercepted telephone communications. All counsel for defendants were given timely notice of the hearing but only a few deemed the matter important enough to attend. On the first day of the hearing when all counsel were present, I ruled that all defendants would be bound by evidence produced at the hearing. It was understood that any counsel could submit any evidence he thought relevant to this issue. However, the only live testimony was that of the FBI agents who were connected with the case.
Upon the application of J. Shane Creamer, then Assistant United States Attorney, Philadelphia Strike Force, Organized Crime Division of the United States Department of Justice, and the affidavit of Edward D. Hegarty, Special Agent of the Federal Bureau of Investigation, United States Department of Justice, an order was entered by John W. Lord, Jr., Chief Judge of this district, which order, authorized the interception of telephone conversations on two telephone numbers (215 TU6-5999, 215 TU6-1429).
Defendants' primary argument is that the affidavit is not sufficient on its face to show probable cause and thus the Order authorizing the wire tap was illegal and any evidence obtained by the wire tap must be suppressed. Defendants' second argument is that the statute circumscribing the issuance of the wire tap order was not complied with in that there was no showing that the Attorney General of the United States sanctioned the request and that the inventories were not filed within the proper time. Defendants also attack the constitutionality of the wire tap statute; however, no evidence was offered on this point.
I will first consider the evidence offered to show that the application was properly made.
Section 2516 of 18 U.S.C.A., Section 2516 (1968) reads in pertinent part as follows:
"(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 by the Federal Bureau of Investigation, or a Federal agency having responsibility for the investigation of the offense as to which the application is made, when such interception may provide or has provided evidence of --
(c) any offense which is punishable under the following sections of this title: * * * section 1084 (transmission of wagering information) * * *
(g) any conspiracy to commit any of the foregoing offenses."
At the hearing the Government offered two letters which were received in the regular course of business by the Philadelphia Strike Force, Organized Crime Division of the United States Department of Justice. One letter was signed by John Mitchell, United States Attorney General, authorizing Mr. Will Wilson, Assistant United States Attorney General, to make the application for a wire tap in this case. The other letter, signed by Mr. Will Wilson, Assistant United States Attorney General, authorized the Philadelphia Strike Force to make such application. These letters were received in evidence over defendants' objection because they were received in the regular course of business of the Philadelphia Strike Force, Organized Crime Division of the United States Department of Justice. Based on these letters, I find that the application was authorized in conformity with the above section of the statute. It would seem entirely unnecessary and inappropriate to require at such a hearing direct oral testimony from the Attorney General of the United States and Mr. Will Wilson that the application to Chief Judge Lord for a wire-tap order was authorized.
SUFFICIENCY OF THE AFFIDAVIT
I have carefully, read this 19-page affidavit and for the reasons set forth, infra, conclude that it is sufficient.
Title 18 U.S.C.A., Section 2518(1)(a) (1968) has been complied with. (See p. 1 of the affidavit.)
1. COMPLETE STATEMENT OF FACTS
Subsection (b) of Section 2518(1) provides as follows:
"(b) a full and complete statement of the facts and circumstances relied upon by the applicant, to justify his belief that an order should be issued, including (i) details as to the particular offense that has been, is being, or is about to be committed, (ii) a particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted, (iii) a particular description of the type of communications sought to be intercepted, (iv) the identity of the person, if known, committing the offense and whose communications are to be intercepted."
A fair reading of the entire affidavit meets the requirement of subsection (1)(b) in that a full and complete statement of the facts and circumstances relied on by the affiant to justify his belief that an order should issue is presented.
At the oral argument on the motions to suppress, counsel argued that the affidavit was not complete because the affiant allegedly purported to be an expert in gambling on sporting events when in fact he is not an expert. A fair reading of the affidavit, however, does not lead one to believe that the affiant is holding himself out to be an expert in this field. Further, counsel argues that at the hearing it was learned that confidential informants #2 and #3 were not the informants of the affiant but rather the informants of another FBI agent. To the extent that this fact would have any effect on the affidavit, it will be discussed infra.
Next, counsel argues that certain information obtained from a wire tap in New Jersey was made part of the affidavit in this case, which information, if illegally obtained, should have been excluded from the affidavit. There is no showing nor even factual allegations that the New Jersey wire tap was illegal. The testimony is to the effect that this wire tap was authorized by a court order through the United States Courts in New Jersey. Further, it is doubtful that these defendants would have standing to object to that evidence even if it were illegally obtained. Alderman v. United States, 394 U.S. 165, 89 S. Ct. 961, 22 L. Ed. 2d 176 (1969).
The affidavit describes the offenses involved on page 1, paragraph 2, Affidavit. Page 2, paragraph 3D of the affidavit gives a description of the place where the communications are to be intercepted. Page 1, paragraph 3A states the nature of the communications sought to be intercepted. Page 1, paragraph 2, Affidavit, names the individuals allegedly committing the offense, whose communications are to be intercepted.
Page 2, paragraph 3C of the affidavit recites that normal investigative procedures have been unsuccessful and probably will not succeed in the future. 18 U.S.C.A. § 2518(1)(c) 1968.
Page 2 of the application states that 15 days is the period of time for which the interception is required. 18 U.S.C.A. § 2518(1)(d) 1968. Since no previous application had been made with respect to these individuals, subsection (e) of Title 18 U.S.C.A. 2518(1) does not apply. Thus, the application and supporting affidavit contains the information required by Section 2518(1).
It appears from the record that the Chief Judge did not request additional information and since title 18, Section 2518(2) is discretionary, no comment is necessary. I also decline to comment upon defendants' indirect contention that the Chief Judge did not read the application. The testimony of the affiant, who was present when the order was signed, shows affirmatively that the Chief Judge read the affidavit.
2. SHOWING OF PROBABLE CAUSE
Title 18, Section 2518(3) reads as follows:
"(3) Upon such application the judge may enter an ex parte order, as requested or as modified, authorizing or approving interception of wire or oral communications within the territorial jurisdiction of the court in which the judge is sitting, if the judge determines on the basis of the facts submitted by the applicant that --
(a) there is probable cause for belief that an individual is committing, has committed, or is about to comit a particular offense enumerated in section 2516 of this chapter;
(b) there is probable cause for belief that particular communications concerning that offense will be obtained through such interception;
(c) normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous;
(d) there is probable cause for belief that the facilities from which, or the place where, the wire or oral communications are to be intercepted are being used, or are about to be used, in connection with the commission of such offense, or are leased to, listed in the name of, or commonly used by such person."
In essence this section requires a showing of probable cause by the facts submitted in the application and affidavit. Defendants urge that this "most insidious means of violating privacy" must be circumscribed by the strictest type of probable cause. Since this statute is relatively new, no cases have been cited wherein the concept of probable cause is given a novel interpretation by this act. It is reasonable to conclude that the probable cause required by this statute is the same that is necessary to obtain the issuance of a search and seizure warrant. It is noteworthy, however, that a search and seizure warrant may issue by a Magistrate, but only a United States Judge may, under the Act, issue a wire tap order.
Looking at the entire affidavit, the basis for probable cause is grounded on information from four confidential informants, information gained from personal surveillance of defendants, Jerome Cantor and Howard Rubin, and information from an authorized wire tap on the phone of Albert Massi in New Jersey. At this point, it is appropriate to summarize the information from the confidential sources, after which I will determine whether this information meets recent Supreme Court criteria.
Confidential Informant #1 is known personally by the affiant. The affidavit reflects that this informant had furnished agent Hegarty (affiant) with reliable information in the past. Further, Confidential Informant #1 says he knows Jerome Cantor, Howard Rubin and Harvey Berke personally and knows from personal knowledge that they are associated with each other in the bookmaking business. Confidential Informant #1 also states that he has a close association with a professional bookmaker and that this associate advised him that he (the associate) "lays off" bets and gets "line" information from Howard Rubin and Jerome Cantor. Confidential Informant #1's associate told Confidential Informant #1 the telephone numbers he calls to place bets and get betting information; those numbers being 215 TU6-5999 and 215 TU6-1429. Also the close associate of Confidential Informant #1 told him (Confidential Informant #1) that he placed a bet with Harvey Berke on a sporting contest on April 7, 1969, at telephone number 215 TR6-5427.
The information supplied by Confidential Informant #2 recites that it was gained from personal knowledge and association with Howard Rubin, Harvey Berke and Al Massi. Although there are no facts or circumstances as to how the affiant concluded that Confidential Informant #2 was reliable, other than the statement that he was, his information corroborates the information of other confidential informants. Also Confidential Informant #2 states that one Al Massi gave him a phone number, HO5-9292, where he could place a bet with Massi. A check of telephone company records ...