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UNITED STATES v. KOHNE

April 25, 1973

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 ten original defendants in the above captioned case were charged in a two-count indictment with conspiring to violate the federal statute prohibiting illegal gambling businesses, 18 U.S.C. § 1955, in violation of 18 U.S.C. § 371 (Count one) and with the substantive violation of 18 U.S.C. § 1955 (Count two). Two of the indicted defendants, Jeanne Kosh and James Quay, pleaded guilty to the substantive violation immediately after the jury was sworn to try this case. After a five and one-half week jury trial, at which the government presented evidence gathered via court-authorized wiretaps, the remaining eight defendants were found guilty of the substantive violation of 18 U.S.C. § 1955 and acquitted of the conspiracy.

 After the jury's verdict, two of the defendants, Patsy and Betty Stanizzo, moved for and were granted judgments of acquittal for the reasons stated in a separate opinion. The remaining six convicted defendants (William Paul Kohne, Paul Patrick Woods, Joseph Tabella, Patrick Denham, Jeanine Denham, and Frank DeLucia) have filed motions for judgment of acquittal and for a new trial. *fn1" In our opinion the motions should be denied. We consider seriatim the following grounds for a new trial raised by defendants:

 (1) The court erred in not suppressing the evidence gathered by wiretaps installed on certain telephones.

 (2) The voices of certain defendants were not properly identified and therefore the wiretap conversations were erroneously admitted as evidence against them.

 (3) The jury's verdict was inconsistent and a nullity.

 (4) The court erred in allowing opinion and expert witness testimony.

 (5) The court's charge and supplemental instructions were erroneous.

 (6) The evidence derived from the search of defendant Tabella's residence should have been suppressed.

 (7) The court erred in allowing the trial to continue after two of the defendants pleaded guilty.

 (8) The court erred in allowing the jury to view transcripts of the wiretap conversations and to wear earphones while the conversations were played.

 Finally, we also consider defendants' contentions that they are entitled to judgments of acquittal because the verdicts are against the weight and sufficiency of the evidence.

 Admissibility of Wiretap Evidence

 Defendants assert and reassert that this court erred in not suppressing the wiretap evidence because:

 (1) Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520, is unconstitutional;

 (2) the affidavits filed in support of the wiretap applications lack probable cause;

 (3) defendants' toll records were used illegally in establishing probable cause;

 (4) the wiretap application was not properly authorized under 18 U.S.C. § 2516(1);


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