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UNITED STATES v. FINA

December 5, 1975

UNITED STATES OF AMERICA
v.
EDWARD FINA, et al., EDWARD FINA RAYMOND D'AMBROSIO JAMES DAMBRA ARTHUR WAYNE CORREDO ALFRED FABRIS SAMUEL M. MC FARLAND CHARLES CASTELLANO JOHN AUGUSTINE DiPIETRO NICHOLAS LAPETINA ANNA BOZZO MARIE SCAFIDI a/k/a "Rita Landy" a/k/a "Marie Landy," Movants



The opinion of the court was delivered by: BECHTLE

 BECHTLE, J.

 On July 21, 1975, thirteen individuals were charged in a two-count indictment with operating and conspiring to operate an illegal gambling business, in violation of 18 U.S.C. § 1955 and 18 U.S.C. § 371. Presently before the Court are the motions of the above-named individuals ("defendants") to suppress wiretap evidence.

 This Court, on May 21, 1974, pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520 (1970), authorized the interception of certain wire communications. In our view, the wiretap application showed that there was probable cause to believe that the seven named individuals, *fn1" and others as yet unknown, were committing offenses involving the operation of an illegal gambling business, that particular communications concerning those offenses would be obtained through interception, and that the premises where the interceptions were to be made were being used in connection with those offenses. *fn2" After their indictment, defendants moved to suppress the evidence gathered from the authorized interceptions and, at a hearing before this Court on October 15, 1975, advanced numerous arguments in support of their motions.

 1. Probable cause for issuance of wiretap orders.

 In order for the wiretap order to have been properly authorized, there must have been probable cause to believe that the seven named individuals in the application were engaged in the illegal gambling business. The Government's showing of probable cause was based upon the affidavit of Agent Stokes, *fn3" which in turn relied heavily upon information supplied by five confidential informants. As such, the affidavit must be tested under the standards formulated in Aguilar v. Texas, 378 U.S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509 (1964), and Spinelli v. United States, 393 U.S. 410, 21 L. Ed. 2d 637, 89 S. Ct. 584 (1969), as further explained in United States v. Harris, 403 U.S. 573, 29 L. Ed. 2d 723, 91 S. Ct. 2075 (1971). *fn4" In Aguilar, it was established that, when law enforcement officers rely completely upon the tip of an informant, the affidavit must sufficiently disclose the underlying circumstances from which the informant concluded that the person to be named in the search warrant was engaged in criminal activity so as to enable a magistrate to independently judge the validity of the informant's conclusion. The affidavit must also disclose the circumstances from which the authorities concluded that the informant was credible or his information reliable. 378 U.S. at 114. If the informant's tip is corroborated by other information, then Spinelli requires that the magistrate must be satisfied that the tip, as corroborated by this other information, is as reliable as a tip which would pass Aguilar's requirements when standing alone. 393 U.S. at 415, 416. See United States v. Singleton, 439 F.2d 381, 383-384 (3d Cir. 1971).

 Upon examining the affidavit of Agent Stokes on its face, it is clear that the first test of Aguilar is satisfied, a conclusion which defendants do not dispute. The informants were able to conclude that the named individuals in the application were involved in the illegal gambling business based mainly upon alleged conversations the informants had with these individuals, wherein they advised informants that they were currently involved in the operation of a three-digit numbers lottery. Such information, if entitled to credit, establishes the requisite probable cause. See Harris, supra, 403 U.S. at 587 (Harlan, J., dissenting).

 Concerning the second Aguilar test, there is no question that the affidavit established the reliability of the information upon which the informants based their conclusions as, for the most part, they were based upon the above-mentioned conversations. See Harris, supra, 403 U.S. at 577-579. Defendants contend, however, that the affidavit does not sufficiently set forth a factual basis from which to conclude that informant no. 1, in purporting to relate his conversations with Edward Fina to affiant, was probably telling the truth. *fn5" We do not agree. To be sure, while a bare statement by the affiant that he believed the informant to be truthful, reliable or credible would not suffice, the affidavit in this case contains a sufficient factual basis for believing informant no. 1.

 It has often been held that, if an informant has given information in the past leading to arrests or convictions, it is sufficient to establish his or her reliability. Jones v. United States, 362 U.S. 257, 271, 4 L. Ed. 2d 697, 80 S. Ct. 725 (1960); United States v. McHale, 495 F.2d 15, 17-18 (7th Cir. 1974); United States v. Singleton, supra, 439 F.2d at 384. Although the affidavit did not state that informant no. 1's previous information had led to arrests or convictions, it did state that his past information had never proved to be false or inaccurate and had been corroborated by independent investigation. This would appear to be sufficient. In United States v. Armocida, 515 F.2d 29 (3d Cir. 1975), the Third Circuit held that the reliability of an informant had been established by references contained in the affidavit "to other instances in which information provided by the same informant had been corroborated by independent investigation." Id. at 36 (footnote omitted). Furthermore, informant no. 1's reliability is bolstered by three additional factors. First, his information was based upon his own personal knowledge and not upon hearsay. Harris, supra, 403 U.S. at 581; United States v. McHale, supra, 495 F.2d at 18. Second, his statement that he was "turning in" numbers wagers was against his penal interest, as he admitted complicity in an illegal gambling business, in violation of 18 U.S.C. § 1955. *fn6" Harris, supra, 403 U.S. at 583-584. Finally, Edward Fina and Raymond D'Ambrosio, with whom informant no. 1 dealt, were known to Agent Stokes as gamblers. In conjunction with the above-mentioned information, the affiant's knowledge of a suspect's reputation may properly be relied upon in assessing an informant's reliability. Id. at 581-583; Jones v. United States, supra, 362 U.S. at 271. Agent Stokes' knowledge was not a "bald and unilluminating" assertion that Fina and D'Ambrosio were known to him as gamblers, see Spinelli, supra, 393 U.S. at 414, but was based upon information received from the Chief Officer of the Organized Crime Unit, Philadelphia Police Department. The officer advised Agent Stokes of Fina's and D'Ambrosio's past arrests and convictions for violating local gambling statutes. Accordingly, all of the above factors are sufficient to establish the reliability of informant no. 1.

 Defendants also contend that, even though the reliability of informants no. 3 and no. 5 was established, the reliability of Atillio Marino and Anthony Pungitore, from whom informants no. 3 and no. 5 received their information, was not. Normally, an Aguilar-Spinelli inquiry is concerned with the reliability of unnamed confidential informants, and there is authority that if one unidentified informant relies in turn upon another unidentified informant, the reliability of both must be established. See United States v. Carmichael, 489 F.2d 983, 986-987 (7th Cir. 1973) (en banc). However, informants no. 3 and no. 5 did not rely upon unidentified informants. They relied upon named sources who were targets of the investigation. The Court's research has not revealed any cases that have directly dealt with this issue. The only authority which appears to support defendants' position is the statement by Mr. Justice Harlan in Spinelli, supra, that "if the informant came by the information indirectly, he did not explain why his sources were reliable." 393 U.S. at 416. Given such a standard, 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 ...


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