the fact that Marino's and Pungitore's statements were against their penal interests sufficiently manifests their reliability. See United States v. Carmichael, supra, 489 F.2d at 986.
Finally, defendants argue that there was no probable cause to believe that the seven named individuals were operating an illegal gambling business in violation of 18 U.S.C. § 1955 for the reason that the Government, in its wiretap application, cited state laws which had been repealed prior to this Court's May 21, 1974, Order authorizing electronic surveillance. Section 1955(b)(1)(i) states that, in order for a gambling business to be illegal, it must be in violation of the laws of the state in which it is conducted. While it is true that the wiretap application cited 18 P.S. §§ 4601 and 4607, which were repealed on June 6, 1973, as the applicable state law, those sections were replaced by 18 C.P.S.A. §§ 5512 and 5514 which are virtually identical with the former sections. More importantly, both sets of laws prohibit the gambling business which the seven named individuals in the wiretap applications were allegedly engaged in and the subsequent indictment properly sets forth §§ 5512 and 5514 as the applicable state law. Thus, even though there may have been error, it cannot be said that defendants were prejudiced thereby.
Accordingly, the Court holds that the probable cause requirements of 18 U.S.C. § 2518 were satisfied.
2. Other investigative procedures.
Defendants claim that the Government failed to show that other investigative techniques had been tried and failed or that they would reasonably appear to be unlikely to succeed or would be too dangerous, as required by 18 U.S.C. § 2518(1)(c) and (3)(c). We do not agree. These sections must be viewed in a practical and common sense fashion as they are "simply designed to assure that wiretapping is not resorted to in situations where traditional investigative techniques would suffice to expose the crime." United States v. Kahn, 415 U.S. 143, 153 n.12, 39 L. Ed. 2d 225, 94 S. Ct. 977 (1974). In addition, in order for this Court to hold that normal investigative procedures are unlikely to be successful we are only required to find "that there [exists] a factual predicate in the affidavit." United States v. Armocida, supra, 515 F.2d at 38. See United States v. Robertson, 504 F.2d 289, 292-293 (5th Cir. 1974), cert. denied, 421 U.S. 913, 95 S. Ct. 1568, 43 L. Ed. 2d 778 (1975). Agent Stokes' affidavit clearly satisfies that requirement.
The Stokes affidavit reveals a history of physical surveillance and utilization of informants. These methods failed to determine the scope of the conspiracy and to establish the identity of all participants. Accordingly, Stokes' affidavit stated that: (1) the informants would not testify; (2) without that testimony, it would be difficult to determine the extent and volume of the gambling activities; (3) search warrants would not be fruitful due to the nature of bookmaking operations; (4) there were no known witnesses to testify to the illegal gambling activities; (5) surveillance was too easily noticeable and could jeopardize the investigation, and surveillance would not produce direct evidence, as alleged violations were occurring indoors; and (6) infiltration was not a practical possibility, since the heads of the operation would not hire persons who are unknown to the South Philadelphia organized crime element. Based upon these facts, the Court finds the affidavit satisfied the Government's burden under § 2518(1)(c) and that it showed that other normal investigative techniques "reasonably appear unlikely to succeed," as required by § 2518(3)(c).
Defendants' citation of United States v. Kalustian, 17 Cr.L. 2428 (9th Cir. August 4, 1975), does not persuade this Court to hold otherwise. Kalustian held that the Government must inform the reviewing judge of (1) "every technique which is customarily used in police work in investigating the type of crime involved, and (2) explain why each of them has either been unsuccessful or is too dangerous or unlikely to succeed because of the particular circumstances of that case." Id. at 2429. Such a standard imposes a stricter burden on the Government than the one set down by the Third Circuit in United States v. Armocida, supra. To the extent they conflict, Armocida controls this Court's disposition. Moreover, the Ninth Circuit has addressed this issue three times in the space of five months, the first two rulings being inconsistent with the holding in Kalustian. Compare Kalustian with United States v. Smith, 519 F.2d 516 (9th Cir. 1975) and United States v. Kerrigan, 514 F.2d 35 (9th Cir.), cert. denied, 423 U.S. 924, 96 S. Ct. 266, 46 L. Ed. 2d 249 (1975). In light of those decisions, it is difficult to discern exactly what the standard is in the Ninth Circuit, particularly since Kalustian fails to mention both the Smith and Kerrigan cases.
3. Inclusion, if known, in application.
Charles Castellano, Nicholas Lapetina, Anna Bozzo and Marie Scafidi contend that the Government's wiretap application violated 18 U.S.C. § 2518(1)(b)(iv), which requires that "the identity of the person, if known, committing the offense and whose communications are to be intercepted" be included in the application. They argue that they were not named in the application even though they were "known" to the Government to be involved in illegal gambling activities. Paragraph 3 of the application reads in pertinent part: "This application seeks authorization to intercept wire communications of Edward Fina, James S. Dambra, Ann Sinatra, Alfred J. Iezzi, Anthony Pungitore, Raymond D'Ambrosio, and Atillio Marino, and others as yet unknown, concerning offenses enumerated in Section 2516 of Title 18, United States code . . . ."
The standard by which this Court must gauge whether these four persons were "known," within the meaning of § 2518(1)(b)(iv), is contained in the Supreme Court's decision in United States v. Kahn, 415 U.S. 143, 39 L. Ed. 2d 225, 94 S. Ct. 977 (1974). The Court stated:
Title III required the naming of a person in the application or interception order only when the law enforcement authorities have probable cause to believe that that individual is "committing the offense" for which the application is sought. Id. at 155 (dictum).