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UNITED STATES v. KOHNE

August 25, 1972

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


Marsh, Chief Judge.


The opinion of the court was delivered by: MARSH

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; *fn1" 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: *fn2"

 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. ...


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