(5) the wiretap applications fail to show why other investigative techniques would fail as required by 18 U.S.C. § 2518(3);
(6) the government failed to comply with 18 U.S.C. § 2519 requiring reports to be filed with the Administrative Office of the United States Courts;
(7) the government failed to serve copies of the wiretap applications and court orders on all parties at least ten days before trial as required by 18 U.S.C. § 2518(9);
(8) the government presented duplicate tapes, rather than the sealed originals, to the grand jury.
Grounds one through five above were decided adversely to defendants when this court ruled on their pretrial motions, United States v. Kohne, 347 F. Supp. 1178 (W.D. Pa. 1972).
Ground six is untimely
and without merit since the failure to file reports with the Administrative Office of the United States Courts is not one of the specifically enumerated grounds for suppression provided under 18 U.S.C. § 2518(10)(a). Grounds seven and eight were ruled upon at trial and merit brief discussion here.
As alleged by the defendants in ground seven, the government failed to serve the defendants copies of the applications and court orders for the wiretaps involved in this case at least ten days prior to trial as required by 18 U.S.C. § 2518(9). But, defendants do not contend, nor can they, that this was a deliberate bypassing of the requirement of the Act or that they have been prejudiced by this failure in any manner. The purpose of 18 U.S.C. § 2518(9) is to provide a defendant with notice so that he can move to suppress wiretap evidence prior to trial. U.S. Code Cong. and Admin. News, 1968, p. 2195. The defendants in this case did move to suppress the wiretap evidence prior to trial, asserting as one of the grounds therefor that the applications for the court orders authorizing the wiretaps did not set forth probable cause. At the hearing on their motions on March 16, 1972, defendants, by their counsel, extensively cross-examined witnesses using the applications and court orders they now complain were not served on them ten days prior to trial.
Furthermore, these documents were offered into evidence as exhibits at this hearing,
and prior to the hearing had been public records on file in the Office of the Clerk of Court since January 14, 1972.
Since the record clearly establishes that defendants had access to these documents almost one year prior to trial and, in fact, moved to suppress the wiretap evidence because of alleged insufficiencies in them, we find substantial compliance with the statute, and hold that the refusal to suppress the wiretap evidence during the trial was correct. United States v. Wolk, 466 F.2d 1143 (8th Cir. 1972); cf. United States v. Eastman, 465 F.2d 1057 (3d Cir. 1972).
In ground eight above the defendants moved to suppress the wiretap evidence because the tapes presented to the grand jury were duplicates of the sealed tapes used at trial. The sealing procedure required by 18 U.S.C. § 2518(8)(a) is aimed at protecting the confidentiality of the tapes and, as a secondary purpose, aids in establishing a chain of custody at trial. United States v. Cantor, 470 F.2d 890, 893 (3d Cir. 1972); United States v. Poeta, 455 F.2d 117, 122 (2d Cir. 1972). But 18 U.S.C. § 2518(8)(a) also specifically provides that duplicate tapes may be made, and 18 U.S.C. § 2517(2) allows law enforcement officers to use duplicate tapes "to the extent such use is appropriate to the proper performance of [their] duties." We believe that it was appropriate under 18 U.S.C. §§ 2517(2), 2518(8)(a) to prepare and present duplicate tapes to the grand jury so that the sealed originals would remain intact for inspection by defendants and use at trial. In our opinion this procedure did not require that all wiretap evidence be suppressed.
Adequacy of the Voice Identification
Defendants, Tabella, Woods, and DeLucia, object to the admission of wiretap recordings of phone conversations against them, contending that their voices were never properly identified so as to establish their participation in these conversations. We disagree.
As to Woods and Tabella, their voices were identified by Special Agents Thompson and Britton, respectively. Also, the evidence showed that the phones that were tapped were located in their residences, and they were referred to by name during both incoming and outgoing calls occurring on these phones.
The identification evidence by the agents, coupled with the strong circumstantial evidence, satisfactorily identified their voices so as to support the jury's findings that they were the participants in the gambling conversations. United States v. Alper, 449 F.2d 1223, 1229 (3d Cir. 1971); Carbo v. United States, 314 F.2d 718, 743 (9th Cir. 1963). Moreover, William Kohne testified in his own defense and implicated Woods and Tabella in his gambling business.
The identification of Frank DeLucia's voice presents a different problem. DeLucia's voice was not identified by any witness and the government relies entirely on circumstantial evidence to support its contention that his is the voice on the recordings; this mode of identification is complicated by the fact that Frank DeLucia's adult son, Frank DeLucia, Jr., allegedly resided with him.
The circumstantial evidence adequately established that someone named "Frank" received and placed telephone calls dealing with illegal gambling from telephones located in the DeLucia residence. Two sets of calls support the government's contention that the senior DeLucia was the "Frank" participating in the gambling operation.
In these calls, Woods called the DeLucia residence, a child answered, Woods asked if the child's father, "Frank", was there; DeLucia's wife, "Becky", then came to the phone and informed Woods that "Frank" was at Leo's; Woods then called a number registered to Leo T. McGrath and spoke to "Frank" about the gambling operation. Based on these two sets of conversations the jury could find, with reason, that the senior DeLucia, rather than his son, was participating in the illegal gambling operation.
The Inconsistency in the Jury's Verdicts
Numerous objections are based upon the jury's verdicts being inconsistent in that they acquitted the defendants of conspiracy and convicted them of the substantive violation. Defendants contend that the indictment was duplicitous; that the jury's verdicts are inconsistent and a nullity; and, because the defendants were ultimately acquitted of the conspiracy count, declarations of coconspirators were erroneously admitted into evidence at the trial.
Since all defendants were acquitted of conspiracy defendants are entitled to no relief even if the indictment was duplicitous, and assuming arguendo that the verdicts are inconsistent, such inconsistency has long been one of a jury's prerogatives. United States v. Fiorella, 468 F.2d 688, 690 (2d Cir. 1972). Likewise, the fact that the defendants were charged with conspiracy, but acquitted, despite strong evidence of conspiracy, does not retroactively render inadmissible the hearsay which was allowed into evidence under the declarations of the co-conspirators exception to the hearsay rule. This hearsay evidence remained competent and its admission does not vitiate the jury's verdict finding the defendants guilty only of the substantive offense. United States v. Herr, 338 F.2d 607, 610 (7th Cir. 1964); Burns v. United States, 286 F.2d 152, 155 (10th Cir. 1961); Coplin v. United States, 88 F.2d 652, 661 (9th Cir. 1937).
We find nothing talismanic in the form in which the jury rendered its verdicts which would entitle these defendants to a new trial.
Opinion and Expert Witnesses
Defendants contend that this court erred in allowing Special Agents Meek, Thompson, and Burton to give certain opinions, and in allowing the government's expert on gambling, Special Agent T. C. Whitcomb, to testify when defendants were not supplied with a copy of his report prior to trial.
Special Agent Meek gave his opinion that the pen register, an instrument used in this case to determine the outgoing telephone numbers being dialed on monitored phones, was an accurate instrument. Agent Meek had not tested the pen register used in this particular case, but testified to the accuracy of the pen register generally. Agent Meek was a college graduate; he had one month of specialized training by the Federal Bureau of Investigation in electronic surveillance, and eight months practical experience in such work; he had read books dealing with the pen register; and he had used the pen register when working on two other wiretap cases. While Agent Meek was not an eminently qualified expert, we believe he was sufficiently qualified to give his opinion as to the pen register's reputation for accuracy. His opinion found later support in the numerous recorded conversations in which the parties to the calls were identified by name or voice identification as being individuals whose residences contained telephones bearing the same numbers which the pen register had reported.
Agents Thompson and Burton gave certain opinions concerning gambling. They were not experts as gamblers, but both did have considerable experience in investigating gambling cases. We believe such investigative experience sufficiently qualified these agents so as to allow them to express their opinions on certain aspects of the gambling operation involved in this case. Moore v. United States, 394 F.2d 818 (5th Cir. 1968); Commonwealth v. Ametrane, 205 Pa. Super. 567, 210 A. 2d 902 (1965), aff'd, 422 Pa. 83, 221 A. 2d 296 (1966); Commonwealth v. Smith, 186 Pa. Super. 89, 140 A. 2d 347, 349 (1958).
Finally, defendants object to the testimony of Special Agent T. C. Whitcomb, contending that they were entitled to have a report covering his testimony prior to trial. We have found no authority which entitles a defendant, as a matter of right, to a gambling expert's report. Rule 16, Fed. R. Crim. P., is limited to reports of physical or mental examinations, and scientific tests or experiments. In any event, when this court was informed by the government that it intended to use an expert witness on gambling, his report was ordered to be supplied to the defendants at least five days before he testified, this was done, and none of the defendants requested a continuance to further study Whitcomb's report. On these facts, we can see no prejudice to the defendants because Whitcomb's report was not supplied prior to trial. Cf. Rule 16(g), Fed. R. Crim. P.
Errors in the Court's Charge and Supplemental Instructions
Defendants' attack on the court's charge centers on the definition of the word "conduct" and the supplemental explanation of "knowingly and wilfully" given in response to a question from a juror.
In the charge, this court instructed that all participants in the operation of an illegal gambling business, except customers and persons placing bets, are conducting the business within the meaning of 18 U.S.C. § 1955. We believe this to be a correct statement of the law. United States v. Ceraso, 467 F.2d 653, 656 (3d Cir. 1972); United States v. Becker, 461 F.2d 230, 232 (2d Cir. 1972); cf. United States v. Palmer, 465 F.2d 697, 699 (6th Cir. 1972); United States v. Riehl, 460 F.2d 454, 459 (3d Cir. 1972); United States v. Harris, 460 F.2d 1041, 1049 (5th Cir. 1972). Contrary to defendants' contention, we do not believe this court erred in defining the term "conduct".
During the course of deliberations, Juror No. 10 sent to the court a statement and later a question dealing with the use of the terms "knowingly and wilfully" in the indictment.
It seemed from these communications that this juror felt that the government had the burden of proving that the defendants knew that a federal law prohibiting illegal gambling businesses had been enacted and that they wilfully and knowingly violated it. In response to this juror's second question, an instruction defining the terms "knowingly and wilfully" was given, and the jury was told they were not required under the indictment or the law to find that the defendants knew the size of, or the number of participants in the illegal gambling business, or that a federal law proscribed such a business; but, that it was only necessary that the defendants knew that Pennsylvania state law made their activities criminal.
Defendants object to the correctness of this instruction.
We believe that a fair reading of the indictment shows that it only charges that the defendants "knowingly and wilfully" performed the proscribed act with specific intent to do something the state law forbids, and it does not interject the requirement that they did so with knowledge that a federal law proscribed their acts as well.
Nor do we believe the law requires such knowledge. While no case clearly decides the issue, 18 U.S.C. § 1955 is the type of statute only requiring a general criminal intent, -- a voluntary and intentional doing of an act which the statute makes unlawful -- and knowledge that such act is unlawful under federal law is not necessary. United States v. Erlenbaugh, 452 F.2d 967, 973 (7th Cir. 1971), aff'd, 405 U.S. 973, 92 S. Ct. 1194, 31 L. Ed. 2d 247 (1972); United States v. Miller, 379 F.2d 483, 486 (7th Cir. 1967); cf. United States v. Weiler, 458 F.2d 474 (3d Cir. 1972). We believe the response to the juror's question was a correct statement of the law and properly given to clear up his obvious misunderstanding as to the effect to be given the words "knowingly and wilfully" in the indictment.
At trial defendants also objected to the court's supplemental instruction to the jury that even though the indictment charged multiple acts in the conjunctive, proof that one of the acts so charged was committed by a named defendant was sufficient to support his conviction. This principle is so well established that this objection does not merit discussion here. United States v. Gimelstob, 475 F.2d 157 (3d Cir. 1973).
Search of the Tabella Residence
Defendant Tabella contends that Agents of the Federal Bureau of Investigation searched his home under color of a search warrant for another residence, thereby vitiating any consent from him for such search and rendering inadmissible certain demonstrative evidence seized by the government and used at trial as the product of an illegal search and seizure. This objection was raised for the first time at trial and is untimely under Rule 12(b)(3), Fed. R. Crim. P. Moreover, Tabella's reliance on Bumper v. North Carolina, 391 U.S. 543, 88 S. Ct. 1788, 20 L. Ed. 2d 797 (1968), is misplaced
because the undisputed facts surrounding the search of his residence show that he gave his consent knowingly, and the agents did not in any way act under color of an invalid warrant.
The only evidence concerning the search of Tabella's residence came from Special Agent Britton. He testified that he went to Tabella's residence at 192 Provost Street on July 12, 1971; he informed Tabella he wanted to search for gambling paraphernalia and that he had a search warrant for Tabella's former residence at 3710 Sawmill Run Boulevard; that he stressed that he had no legal authority to search the new residence unless Tabella consented; and that Tabella reviewed a consent to search form, refused to sign it, but orally informed Special Agent Britton that he consented to the search.
Clearly this is not a case where officers searched under color of an invalid or nonexistent warrant; therefore Bumper v. North Carolina, supra, is inapposite to these facts. Here the agents took great pains to inform Tabella they did not have a valid search warrant, and Tabella, obviously to give the impression that he had nothing to hide, voluntarily and knowingly consented to the search. On this record we can only find that Tabella gave valid consent to have his residence searched, and, contrary to defendant's contention the evidence derived therefrom was properly admitted at trial. Cf. Hoover v. Beto, 467 F.2d 516, 520 (5th Cir. 1972); Leeper v. United States, 446 F.2d 281, 284 (10th Cir. 1971); United States ex rel. Combs v. La Vallee, 417 F.2d 523, 525 (2d Cir. 1969).
The Guilty Pleas of Quay and Kosh
After the jury was sworn and counsel for the defendants introduced, two defendants, James Quay and Jeanne Kosh pleaded guilty in the absence of the jury. The remaining defendants immediately moved for a mistrial, contending that the conspicuous absence of these two defendants would prejudice them. The motions were denied, but the court offered to inform the jury of the pleas and give the required cautionary instruction.
This offer was unanimously declined by defendants. Accordingly, the jury was never told that Quay and Kosh had pleaded guilty, but was told in the court's charge that they were not permitted to speculate on the absence of Quay and Kosh from the trial.
Defendants contend that it was error to continue with the trial after these guilty pleas were accepted. We disagree.
The cases clearly hold that it is not error to accept the guilty pleas of a co-defendant during the course of a trial. United States v. Broadhead, 395 F.2d 761 (2d Cir. 1968); United States v. Kahn, 381 F.2d 824, 836 (7th Cir. 1967); United States v. Edwards, 366 F.2d 853 (2d Cir. 1966); Wood v. United States, 279 F.2d 359 (8th Cir. 1960); United States v. Stallings, 273 F.2d 740 (2d Cir. 1960); Davenport v. United States, 260 F.2d 591 (9th Cir. 1958); cf. Freije v. United States, 386 F.2d 408 (1st Cir. 1967). The only question with such procedure being the propriety of the court informing the jury of such a guilty plea on its own motion. Compare United States v. Edwards, supra, 366 F.2d at 870, with Wood v. United States, supra, 279 F.2d at 363.
In this case the defendants, for obvious reasons of strategy, decided that the jury should not be informed of the guilty pleas and given the appropriate cautionary instruction. The defendants were not entitled to have a mistrial declared merely because two of the defendants pleaded guilty. The options that were available were explained to them and they made a unanimous choice that the jury not be informed of the guilty pleas of their co-defendants. This court respected the defendants' decisions and considering all the circumstances, we perceive no error in the procedure followed.
Use of Transcripts and Earphones by the Jury
Defendants contend that this court erred in allowing the jury to follow the taped conversations with the aid of transcripts, and that they were denied a public trial because the jury used earphones to better hear the taped conversations.
The transcripts used by the jury were available to defense counsel before trial and they were ordered to inspect and submit written objections to them prior to trial.
Furthermore, objections to the accuracy of the transcripts were considered at trial and the defendants were given the benefit of any doubt concerning their accuracy. Under these circumstances we believed it was appropriate to use those transcripts to which no substantial objection was made as visual aids to the jury in following the recorded evidence.
Likewise, we do not believe that the fact that the court, the jury, defendants and counsel were permitted to use earphones to better hear the recorded conversations denied defendants a public trial. During all but a few days of trial a public address system enabled spectators to hear the recorded exhibits offered by the government, and at all times during the trial extra earphones were available for spectators. In any event this very issue has been raised before and, without exception, it has been held that the use of earphones does not infringe upon a defendant's right to a public trial. See: Iva Ikuko Toguri D'Aquino v. United States, 192 F.2d 338, 365 (9th Cir. 1951); Gillars v. United States, 87 U.S. App. D.C. 16, 182 F.2d 962, 977 (1950). Even when a public address system and the extra earphones were not available for spectators we agree with the D'Aquino case, supra, where it was stated at 365:
"* * * Essentially the records were exhibits and we think that appellant might as logically argue that she was denied a public trial because certain exhibits such as photographs, samples of handwriting, etc., although examined by the parties and by the jury were not passed around to the spectators in the courtroom. We think that the contention as to lack of public trial is wholly without merit."