United States v. Clements

588 F.2d 1030, 4 Fed. R. Serv. 377, 1979 U.S. App. LEXIS 17137
CourtCourt of Appeals for the Fifth Circuit
DecidedFebruary 2, 1979
DocketNo. 77-5492
StatusPublished
Cited by34 cases

This text of 588 F.2d 1030 (United States v. Clements) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth 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. Clements, 588 F.2d 1030, 4 Fed. R. Serv. 377, 1979 U.S. App. LEXIS 17137 (5th Cir. 1979).

Opinion

RONEY, Circuit Judge:

This is a gambling case in which the bulk of the Government’s evidence was obtained through telephone wiretaps. Defendants challenge their convictions on four major grounds: first, they attack the court order permitting the telephone taps, arguing that, the supporting affidavit was deficient for a number of reasons; second, they assert the Government has failed to prove a violation of the federal gambling statute, 18 U.S.C.A. § 1955, in that there was neither (1) a violation of state law, (2) the requisite five persons in the business, nor (3) the required financial volume; third, two defendants challenge the sufficiency of the evidence; and fourth, they contend that the district court’s instructions were erroneous. Finding that none of these contentions merit reversal, we affirm.

[1034]*1034I. Facts

In the fall of 1975, defendants Basden, Bruzga, Clements, and Winborn conducted a bookmaking operation in the panhandle region of Texas [“Amarillo operation”]. At the same time, defendants Miller and Robinson were engaged in a bookmaking operation in the Dallas-Fort Worth area [“Dallas-Fort Worth operation”]. Bets were taken on sporting events, mainly college and professional football games. The operations were conducted primarily over the telephone. The defendants settled with bettors on a weekly basis, usually in person.

In November 1975, on the basis of tips from informants, surveillance and an examination of telephone records, the FBI obtained an authorization to conduct electronic surveillance of several telephone lines in both locations. It produced recordings of more than 3,000 calls which led to the indictment of the defendants.

The evidence adduced by the Government tended to show that the Amarillo operation, in addition to accepting bets, regularly received line information from and made lay off bets with the Dallas-Fort Worth operation. Lay off bets are made by one professional gambler with another in order to hedge against loss because of unevenness of bets made by customers. Line information is the current odds a gambler is willing to give on each game.

All six defendants were convicted of a violation of 18 U.S.C.A. § 1955 and § 2 for being engaged in a business involving five or more persons which violated state gambling laws. Defendant Bruzga was also convicted of a two-count violation of 18 U.S.C.A. § 1084 and § 2 for knowingly using the telephone for the transmission in interstate commerce of bets on sporting events.

II. The Wiretap Evidence

Defendants sought to suppress evidence produced by the court-ordered wiretap, attacking the underlying Government affidavit submitted to the court pursuant to 18 U.S.C.A. § 2518. They assert the affidavit was insufficient for essentially four reasons: the affidavit failed to show the requisite probable cause, failed to set forth properly that a state statute was being violated, failed to demonstrate that normal investigatiye procedures were inadequate, and contained misrepresentations.

1. Probable Cause

Subsection (3) of 18 U.S.C.A. § 2518 provides that a judge may enter an ex parte order authorizing interception of wire communications “if the judge determines on the basis of the facts submitted by the applicant that — (a) there is probable cause for belief that an individual is committing, has committed, or is about to commit” certain enumerated offenses including participation in an illegal gambling operation.

When the facts that show probable cause are provided by informants, the affidavit must pass a two-pronged test: first, the judge must be informed of some of the circumstances relied upon by the informant, and second, facts must be shown from which the affiant concluded that the informant was reliable so the judge can make an independent determination of probable cause. Corroborative evidence may be used to justify reliance on an informant. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

In his affidavit, FBI Agent Landers related information supplied by three confidential informants. The affidavit indicated that for a period of ten weeks the first informant related current and detailed information about Miller’s Dallas-Fort Worth operation based on personal conversation with Miller. Corroboration was detailed in several respects. For example, information supplied by another informant corroborated Miller’s claim that he conveyed line information to a large bookmaking operation in Amarillo. Information about an October 3, 1975 airport meeting was independently corroborated by local police surveillance. The affidavit also indicated that Miller had been arrested previously for gambling and [1035]*1035fined on a bookmaking charge. The affidavit included an explicit claim of past reliability.

The information from the second informant came from a personal and recent conversation with Miller. The informant had proven reliable in supplying valuable information regarding gambling in the Dallas area for three years.

The third informant received information from conversations with defendant Bruzga in Amarillo. He was advised that a bookmaking operation was being conducted over certain phone numbers. The informant placed bets over these numbers which according to telephone company records were listed to Young Advertising Co. c/o J. Young, Room 2, Texan Motel, Wildorado. Independent surveillance during this time placed Winborn and Bruzga at Room 2 of the motel on numerous occasions. The informant was represented to be credible and reliable over a four-year period which independent investigation had showed to be correct. In addition, local records showed that Bruzga had been arrested in 1970 on a charge of unlawful bookmaking, although no conviction resulted.

The detailed information in the affidavit provided the court with ample material with which to test the reliability and credibility of the informant and the information that showed probable cause to believe that illegal activity was taking place. See United States v. Scott, 555 F.2d 522, 526 (5th Cir.), cert. denied, 434 U.S. 985, 98 S.Ct. 610, 54 L.Ed.2d 478 (1977).

2. Miscitation of State Statute

Defendants contend the affidavit was insufficient and the order invalid because in alleging the violation of state law, it cited a state statute that had been repealed 22 months earlier. Tex. [Penal] Code Ann. tit. 10, § 652a (Vernon).

This mistake is insufficient to invalidate the wiretap. The affidavit accurately represented that gambling was unlawful under state law. Gambling such as that conducted by defendants was illegal under Texas law. Tex. [Penal] Code Ann. tit. 10, § 47.03 (Vernon)1 outlaws it now, rather than the repealed statute cited in the affidavit. Defendants suffered no prejudice as a result of the miscitation of the applicable Texas statute. Both the rules and the cases provide that a citation error in an indictment is not grounds for dismissal or reversal. Fed.R.Crim.P.

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Bluebook (online)
588 F.2d 1030, 4 Fed. R. Serv. 377, 1979 U.S. App. LEXIS 17137, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-clements-ca5-1979.