United States v. Alfred Decesaro

502 F.2d 604
CourtCourt of Appeals for the Seventh Circuit
DecidedAugust 15, 1974
Docket73-1021, 73-1370 and 73-1364
StatusPublished
Cited by22 cases

This text of 502 F.2d 604 (United States v. Alfred Decesaro) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Alfred Decesaro, 502 F.2d 604 (7th Cir. 1974).

Opinions

PELL, Circuit Judge.

An indictment returned in September 1971 in the Eastern District of Wiscon[605]*605sin charged eleven persons with conducting an illegal gambling business in violation of 18 U.S.C. § 1955.1 Thereafter, eight of those indicted moved to suppress evidence obtained through a wiretap order of February 15, 1971, which had been authorized by a United States district court judge pursuant to 18 U.S. C. §§ 2510-2520.2 On November 1, 1972, prior to trial, the same judge who had earlier issued the wiretap order granted the defendants’ motion to suppress the evidence obtained under that order.3 The Government has appealed pursuant to 18 U.S.C. §§ 2518(10) (b), 3731.

While governmental interception of telephonic communications is the subject of stigmatic regard by those devoted to the preservation of civil liberties and the right of privacy, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq., permits such electronic surveillance subject to the safeguards' and restrictions of that Title. The statute has passed constitutional muster. United States v. Ramsey, 503 F.2d 524 (7th Cir. 1974); United States v. Cafero, 473 F.2d 489 (3d Cir. 1973), cert. denied, 417 U.S. 918, 94 S.Ct. 2622, 41 L.Ed.2d 223 (1974). Only one court has ruled, as far as we can ascertain, to the contrary, and that district court decision was reversed. See United States v. Tortorello, 480 F.2d 764, 774 n. 6 (2d Cir. 1973), cert. denied, 414 U.S. 866, 94 S.Ct. 63, 38 L.Ed.2d 86 (1974). The affidavit accompanying the application m the case before us asserts, and the district court in granting the application so found, that in the particular area of criminal activity here involved “normal investigative procedures reasonably appear unlikely to succeed.” The district court adhered to this position in his order of suppression. 349 F.Supp. at 551.

To authorize a wiretap, a judge must determine that “there is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in section 2516 of this chapter . ” 18 U.S.C. § 2518(3)(a). Violation of section 1955 is one of the offenses enumerated in section 2516. The district court on its second examination found that the affidavit in support of the wiretap application failed to establish probable cause that an auxiliary telephone subscribed to by ap-pellee Germinaro and a tavern telephone subscribed to by appellee Thomas were being used for the operation of an “illegal gambling business,” as defined in section 1955, or in aid of a conspiracy to conduct such a business. Moré particularly, the judge announced that he had “substantial doubts that the affidavit presents a probable cause showing sufficient to find” participation by five ner-sons in the gambling business under 18 U.S.C. § 1955, 349 F.Supp. at 549, which would mean, in the specific language of 18 U.S.C. § 1955(b) (1) (ii), five persons who “conduct, finance, manage, super[606]*606vise, direct, or own all or part of such business.”

The Warrant Application

The application for the warrant, subscribed to by Justice Department attorney Michael King, alleged that there was probable cause to believe that Alfred Frank DeCesaro, Eugene Francis Thomas, Angelo Germinaro, Ronald Leo Gregorski, Raymond James Matera, Kelly Covelli, Joseph Michael Buratti, and “others as yet unknown” had committed and were committing offenses involving the operation of an illegal gambling business, in violation of 18 U.S.C. § 1955. The application further alleged that these persons were conspiring to commit these offenses in .violation of 18 U.S.C. § 371.4 The participants supposedly were using two Kenosha, Wisconsin, telephones, 414-694-1795, subscribed to by Angelo Germinaro, and 414-657-3000, subscribed to by Gene F. Thomas at the Office Lounge.

The applicant claimed that the particular wire communications that the Government sought to intercept would concern

“The illegal operation of a gambling business relating to the placing and accepting of bets on sporting events and horse races, payment and collection of money bet . . ., laying off of bets on said sporting events and horse races, and their roles in the commission of said offenses.”

To support the averment of probable cause, Government attorney King appended an affidavit by Special FBI Agent John Duffy, the agent who had supervised the investigation involved here. The extensive affidavit, occupying 26 pages in the appendix, inter alia, described “lay off” betting as follows:

“[A] bookmaking business of any size requires that the bookmaker balance his books .... In this way the bookmaker cannot be a loser [T]he large scale bookmaker . . . tak[es] those bets on a favorite in excess of those placed on the remainder of the participants in the contest and bet[s] them again with an even larger bookmaker who is able to balance his books by taking all of these excess bets from many bookmakers in different locations. This operation is known as ‘laying off.’ [T]he bets thus insured are known as ‘lay off bets.’ ”

Agent Duffy stated that his knowledge of this procedure was .gained from his six years’ experience as an investigator of gambling offenses. His definition comports with that given by the Government’s brief on appeal and with that of the Report of the President’s Commission on Law Enforcement and Administration of Justice in The Challenge of Crime in a Free Society at 189, on which report “Congress placed great reliance.” United States v. Ceraso, 467 F.2d 653, 658 (3d Cir. 1972).

The information in the affidavit falls into several broad categories. (1) Information gained by the Bureau’s confidential “numbered” sources from personal observation. (2) Information based, not on these sources’ personal [607]*607knowledge, but on comments they heard by persons later named in the affidavit. Some of these disclosures, primarily telephone numbers used for betting and the names of those accepting the bets, were subsequently verified by the FBI informers on a first-hand basis.

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United States v. Alfred Decesaro
502 F.2d 604 (Seventh Circuit, 1974)

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Bluebook (online)
502 F.2d 604, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-alfred-decesaro-ca7-1974.