(D.C. Criminal No. 70-445) APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA.
McLaughlin, Aldisert and Adams, Circuit Judges.
Appellants were tried in the district court on multi -count indictments charging conspiracy and use of interstate facilities in aid of an illegal gambling enterprise in violation of 18 U.S.C. § 1952. Cafero was found guilty on both counts; Vinciguerra, on the conspiracy count. The questions presented for review in these appeals are: whether Title III, Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-20, offends the Fourth Amendment and is therefore unconstitutional; whether, assuming constitutionality, there was compliance with the statutory requirements of Title III; whether the indictment was sufficient; and, whether the trial court improperly admitted certain evidence.
The government's proof demonstrated that Cafero was a principal in an illegal numbers lottery operating in Philadelphia. Bets were placed on a daily three-digit number which was computed from the parimutuel results of specified races at Florida race tracks. The results of these races were telephoned to Cafero. This transmittal was made within a half-hour after the completion of each race. The origin of the calls to Cafero was not placed into evidence, but because of the time factor between the end of the race and the communication of the results, the government relied on the permissible inference that the calls originated in Florida and terminated in Pennsylvania.*fn1 After receiving the telephonic information, Cafero would call Vinciguerra and others, informing them of the winning digits. Evidence of this operation was received from a government telephone tap placed on Cafero's telephone following court authorization under Title III.
Application for the court-ordered telephonic interception was made by the FBI and supported by affidavits of two informers, one of whom had been providing information to the FBI "for a period exceeding four years, such information resulting in two Federal convictions in the gambling field and 20 local gambling arrests." It was averred that the second informant had consistently provided Philadelphia police with trustworthy information, and that both informants obtained their information from personal observations and from Cafero himself.*fn2 The court order authorized interception for fifteen days subject to earlier termination if the objectives were attained. The wiretap began on January 17, 1970, and terminated seven days later on January 24, 1970. Within ninety days of this termination, the government requested a postponement of the filing of the inventory required by 18 U.S.C. § 2518(8)(d). On April 21, 1970, a court order authorized such a postponement for thirty days. The inventory was filed on May 12, 1970, within the authorized postponement period.*fn3 At trial, appellants made appropriate motions to suppress the evidence on grounds properly noticed in these appeals.
Before this court, appellants have the advantage of the thoughtful opinion of Chief Judge Joseph S. Lord, III, in United States v. Whitaker, 343 F. Supp. 358 (E.D. Pa. 1972), in which Title III was held unconstitutional. Appellants rely heavily upon this opinion in mounting their constitutional attack. Bound by pronouncements of the Supreme Court, the Whitaker court accepted as bedrock the principles enunciated in Lopez v. United States, 373 U.S. 427, 10 L. Ed. 2d 462, 83 S. Ct. 1381 (1963); Osborn v. United States, 385 U.S. 323, 17 L. Ed. 2d 394, 87 S. Ct. 429 (1966); Berger v. New York, 388 U.S. 41, 18 L. Ed. 2d 1040, 87 S. Ct. 1873 (1967); and Katz v. United States, 389 U.S. 347, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967). Thus, Whitaker does not accept in ipsis verbis the theory that there may never be constitutionally permissible eavesdropping.*fn4 Rather, Whitaker holds that the statutory procedures of Title III do not comport with the rigid requirements for constitutionally permissible court-supervised interceptions as formulated by the Supreme Court.
This formulation was perhaps best expressed by Justice Stewart in Katz, supra, 389 U.S. at 355:
Under sufficiently "precise and discriminate circumstances," a federal court may empower government agents to employ a concealed electronic device "for the narrow and particularized purpose of ascertaining the truth of the . . . allegations" of a "detailed factual affidavit alleging the commission of a specific criminal offense." Osborn v. United States, 385 U.S. 323, 329-330, 17 L. Ed. 2d 394, 87 S. Ct. 429.
Although dissenting in Lopez v. United States, supra, Justice Brennan acknowledged that lawful electronic surveillance was possible: "The requirements of the Fourth Amendment are not inflexible, or obtusely unyielding to the legitimate needs of law enforcement. It is at least clear that 'the procedure of antecedent justification before a magistrate that is central to the Fourth Amendment, ' . . . could be made a precondition of lawful electronic surveillance." 373 U.S. at 464.
Thus, prior to embarking upon an analysis of appellants' Whitaker-based argument, we reject their contention that the Fourth and Fifth Amendments preclude any electronic surveillance. Their suggestion that such a conclusion is commanded by Boyd v. United States, 116 U.S. 616, 29 L. Ed. 746, 6 S. Ct. 524 (1886), which reviewed the celebrated English case of Entick v. Carrington and Three Other King's Messengers, 19 HOWELL'S STATE TRIALS 1029 (1765), was rejected in Berger, supra, 388 U.S. at 49-53.
Whitaker found Title III constitutionally deficient in three respects:
1. Section 2518(5), which permits interception for up to a thirty-day period, and allows for court-authorized extensions, was found to present "the constitutional objection to lengthy continuous surveillance expressed in Berger. Title III's intrusion is not 'precise' nor 'carefully circumscribed' nor 'very limited.' The fact that it permits 30-day continuous searches which are only half as long as those condemned in Berger is a distinction without constitutional significance. This aspect of Title III alone renders the Act unconstitutional." 343 F. Supp. at 365-66.
2. Title III was found to lack specific guidelines restricting the executing officer's discretion. "It is left to the executing officers to determine when they have learned enough details concerning enough people about the offense in question so that they should and must stop their interception because the authorized objective has been attained. . . . While Title III is a significant improvement from the New York statute found unconstitutional in Berger, it still lodges too much discretion in the executing officers to comply with the Constitution." 343 F. Supp. at 367.
3. Finally, Whitaker found that Title III "provides for unreasonable searches and seizures by not requiring prompt notice after authorized surveillance has been completed to those people whose ...