findings and conclusions which led to my final judgment.
I. Factual Background
On January 29, 1974, defendant, Charles Iannece, plead guilty to a charge of conspiracy to conduct an illegal gambling business in violation of 18 U.S.C.A. § 371 and 18 U.S.C.A. § 1955. At that time I imposed a suspended sentence, placed the defendant on probation for one year and ordered him to pay a fine of $1000. The terms of the probation included a requirement that Iannece refrain from any unlawful conduct. Subsequently the Government petitioned this court to revoke the defendant's probation on the grounds that he had violated one of its conditions by engaging in illegal gambling activities and an evidentiary hearing was held. The defendant was represented by counsel of his own choice throughout these proceedings.
At the hearing the Government introduced evidence which may be summarized as follows: Pursuant to a Title III authorization signed by the Honorable E. Mac Troutman of this court, a wire interception and pen register were maintained from November 11 through November 19, 1974, on telephone number 215-DE 6-4644, which is listed to Nancy Melilli, 425 Vollmer Street, Philadelphia, Pa. Special Agent Gerard J. Woltemate of the FBI, an experienced gambling investigator, testified that this telephone was being used to conduct a large gambling business which grossed from $10,000. to $40,000. per day. During the period of the interception approximately 50 calls were made from the intercepted number to telephone number 215-755-7607, located at 1133 Wolf Street, Philadelphia, the address at which Iannece resided. Tape recordings of eight of these calls (Exhibit 2) were played for the court and transcripts of these eight calls were introduced into evidence (Exhibits G3.1 -- G3.8).
Special Agent, Louis H. Vernazza identified the voice of "John" on the tapes as being that of John Mellili, and Special Agent John Glasgow identified the defendant by voice as being a participant in six of those calls. This same agent testified that during the execution of a search warrant at appellant's residence on December 10, 1974, appellant, after having been advised of his rights, stated that the agents "were too late . . . . The Philadelphia Police Department had hit the operation at his mother's house about a week ago. The police took all his action." (N.T. 78).
Special Agent K.C. Rohr, who the parties stipulated to be an expert in the field of gambling, testified that the tapes and transcripts contained conversations in which wagering information was exchanged and bets were turned over to "John" [Mellili] by appellant. Rohr stated that the volume of bets turned over and the tenor of the conversations indicated that Iannece was not merely a bettor, but occupied a higher position in a numbers operation such as an office man, who receives bets from a number of different writers and forwards the total to a banker or controller. (N.T. 107-112, 120-121). Rohr also testified that the business relationship between Mellili and appellant was extremely close (N.T. 115), with Mellili occupying a position superior to appellant in the organization (N.T. 111, 114), but that appellant appeared to have a proprietary interest in the operation rather than being on salary (N.T. 116). Rohr concluded that Mellili and appellant were participants "at the very highest level in the hierarchy of a numbers gambling business here, as it exists in the City of Philadelphia." (N.T. 121).
Officer Robert Reid, an 18 year veteran of the Philadelphia Police Department and also a stipulated expert in gambling matters (N.T. 93-94), testified concerning the execution of a state search warrant at the residence of appellant's mother at 2201 South 21st Street, Philadelphia. Reid stated that appellant was observed leaving the residence immediately prior to the execution of the warrant, was stopped and searched, and a "tally sheet" (Exhibit No. 5) containing approximately $9000. worth of gambling business was found in his sock. Officer Reid said that during the search of the house nine sheets of "rice paper" (Exhibit No. 6), commonly used by gamblers because it dissolves in water, were found. Five sheets contained 1400 "straight-box-numbered" (combination) bets and 27 horse bets totalling $1557., one sheet contained 225 sports bets totalling $36,000., and three were tally sheets with 42 names totalling $26,000. (N.T. 95-99). The defendant offered no evidence.
At the close of the hearing I concluded that during the term of Iannece's probation he was conducting an illegal gambling business and specifically that he was accepting wagers, transmitting wagers, and receiving betting information, conduct which was in violation of the penal laws of Pennsylvania. (N.T. 134). I therefore revoked appellant's probation and on March 4, 1975, imposed a sentence of four years imprisonment with eligibility for parole after one year and eligibility for a work release program after six months. I also imposed a $1000. fine.
The decision to revoke probation lies within the sound discretion of the district court and it has been held that a district judge need only be reasonably satisfied that the probationer has violated the terms of his conditional release. United States v. D'Amato, 429 F.2d 1284, 1286 (3d Cir. 1970). See United States v. Strada, 503 F.2d 1081, 1085 (8th Cir. 1974); United States v. Alarik, 439 F.2d 1349, 1351 (8th Cir. 1971); United States v. Nagelberg, 413 F.2d 708, 709-10 (2d Cir.), cert. denied, 396 U.S. 1010, 90 S. Ct. 569, 24 L. Ed. 2d 502 (1970); United States v. Cates, 402 F.2d 473, 474 (4th Cir. 1968). In Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972) the Supreme Court delineated the two-step process involved in a parole or probation revocation decision:
The first step in a revocation decision . . . involves a wholly retrospective factual question: whether the parolee has in fact acted in violation of one or more conditions of his parole. Only if it is determined that the parolee did violate the conditions does the second question arise: should the parolee be recommitted to prison or should other steps be taken to protect society and improve chances of rehabilitation? The first step is relatively simple; the second is more complex. The second question involves the application of expertise by the parole authority in making a prediction as to the ability of the individual to live in society without committing antisocial acts. This part of the decision, too, depends on facts, and therefore it is important for the board to know not only that some violation was committed but also to know accurately how many and how serious the violations were. Yet this second step, deciding what to do about the violation once it is identified, is not purely factual but also predictive and discretionary.
408 U.S. at 479-80, 92 S. Ct. at 2599-2600.
My colleague, Judge Daniel H. Huyett, 3rd, recently pointed out in United States v. Sample, 378 F. Supp. 44 (E.D. Pa. 1974), that the "reasonably satisfied" standard of D'Amato, supra, contains elements of both the fact determining function and the discretionary predictive function referred to in Morrissey. As such, the "reasonably satisfied" standard tends to blur the sharp distinction between these two processes drawn by the Supreme Court in Morrissey and to distract attention from the underlying question of what quantum of proof is required to prove a violation at a probation revocation hearing. I concur with Judge Huyett that a "reasonably satisfied" standard to establish probation violation would be incompatible with the due process requirements of Morrissey.
I also agree, for the reasons set forth in Sample, supra, at 50-51, that the appropriate standard for factual determinations in a probation revocation hearing is proof by a preponderance of the evidence.
Turning to the facts of the case at bar, the evidence that appellant had violated the conditions of probation was overwhelming. The Government met its burden of establishing the defendant's violation beyond a reasonable doubt, and most certainly by a preponderance of the evidence.
I have had the opportunity to read the defendant's brief prepared for the Court of Appeals. His first assertion of error is that my finding that he was conducting an "illegal gambling business" was clearly erroneous. This contention is based on the argument that I used the words, "illegal gambling business," as they are specially defined in 18 U.S.C. § 1955 and that there was no evidence that five or more persons participated in the gambling business in which defendant was involved as required by Section 1955(b)(1)(ii).
The short answer to this assertion is that I made no reference to Section 1955 or its definitions, directly, indirectly, by implication, or otherwise. Just prior to using the words, "illegal gambling business," I made the finding that "John Melilli was conducting a large scale numbers, sports betting and horse racing gambling business . . . that this business was an illegal business and that the defendant, Charles Iannece, assisted him in this business." (N.T. 134). Had I stopped at this point, there could be no contention that any reference to a Section 1955 "illegal gambling business" was intended. However, I went on to employ those words as a label to describe defendant's activities, but did so in the generic sense as is quite evident from my further specific findings that the defendant was accepting wagers, transmitting wagers, receiving betting information, and that this conduct violated the penal laws of Pennsylvania. (N.T. 134). Although I did not make a specific statutory reference, in Pennsylvania it is a crime to set up or maintain
any numbers game, 18 C.P.S.A. § 5512(b)(1), or to receive, record, or register bets, or to sell pools, 18 C.P.S.A. § 5514(2). The evidence plainly showed that Iannece received and was transmitting numbers bets,
received instructions as to bettors,
and was concerned with bets on football games.
Just as the "record . . . is devoid of facts establishing that Mr. Iannece conducted an 'illegal gambling business' [within the meaning of § 1955]," Brief for Appellant at 14, so also is the record devoid of anything that might reasonably have led appellant or his counsel to believe I intended the words "illegal gambling business" to refer to Section 1955.
Although his brief is not entirely clear on the point, I believe appellant also asserts error grounded on the fact that my finding that he had violated the gambling laws of Pennsylvania was based on wiretap evidence which would have been inadmissible in state court
under Pennsylvania's invasion of privacy statutes. 18 P.S. §§ 5701-05. Since appellant did not raise this issue before me, I had no occasion to consider it prior to listening to the tapes and transcripts at the hearing. In any event, appellant's contention is without merit since "so long as the information was lawfully obtained under federal law and met federal standards of reasonableness,
it is admissible in federal court despite a violation of state law." United States v. Armocida, 515 F.2d 49, 51-52 (3d Cir. 1975). See Elkins v. United States, 364 U.S. 206, 223-24, 80 S. Ct. 1437, 1447, 4 L. Ed. 2d 1669 (1960); United States v. Johnson, 484 F.2d 165, 168 (9th Cir.), cert. denied, 414 U.S. 1112, 94 S. Ct. 842, 38 L. Ed. 2d 739 (1973); United States v. Romero, 484 F.2d 1324, 1327 (10th Cir. 1973); United States v. Copes, 191 F. Supp. 623, 624-25 (D. Md.), aff'd sub nom United States v. Sawyer, 297 F.2d 535 (4th Cir.) cert. denied, 370 U.S. 946, 82 S. Ct. 1592, 8 L. Ed. 2d 812 (1962).
Defendant's third argument
is that the doctrine of collateral estoppel precluded my considering the testimony of Officer Reid because this evidence had previously been offered during a state prosecution in which defendant was charged with gambling and was acquitted.
I disagree with the substance of defendant's assertions as to collateral estoppel for several reasons. Although this doctrine is encompassed within the double jeopardy clause of the fifth amendment, Ashe v. Swenson, 397 U.S. 436, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970), and is applicable to the states via the fourteenth amendment, Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969), the Supreme Court has expressly held that because dual sovereignties are involved in our federal system, prosecution by both the United States and a state for the same offense does not constitute double jeopardy. Abbate v. United States, 359 U.S. 187, 79 S. Ct. 666, 3 L. Ed. 2d 729 (1959); Bartkus v. Illinois, 359 U.S. 121, 79 S. Ct. 676, 3 L. Ed. 2d 684 (1959); United States v. Burke, 495 F.2d 1226, 1235 (5th Cir.), cert. denied, 419 U.S. 1079, 95 S. Ct. 667, 42 L. Ed. 2d 673 (1974).
Every citizen of the United States is also a citizen of a State or territory. He may be said to owe allegiance to two sovereigns, and may be liable to punishment for infraction of the laws of either. The same act may be an offense or transgression of the laws of both . . . . That either or both may (if they see fit) punish such an offender cannot be doubted. Yet it cannot be truly averred that the offender has been twice punished for the same offense; but only that by one act he has committed two offenses, for each of which he is justly punishable. He could not plead the punishment by one in bar to a conviction by the other.