United States v. Scasino

513 F.2d 47
Court of Appeals for the Fifth Circuit·Decided May 16, 1975·No. No. 73-2855·Published·Cited by 22 cases

Opinion

DYER, Circuit Judge:

Defendants were indicted on one count of conducting a gambling operation and one count of conspiracy to run a gambling operation which had remained in operation continuously for more than thirty days, had a gross revenue of more than $2,000 in a single day, and involved five or more persons in the conduct, management, supervision, direction and ownership of a gambling operation in violation of 18 U.S.C.A. § 1955 and 18 U.S.C.A. § 371. They also were charged with five counts of unlawfully, willfully and knowingly using a facility in interstate commerce with intent to promote, manage, establish and carry on a gambling operation in violation of 18 U.S.C.A. § 1952. Prior to trial defendants moved to suppress evidence obtained from a wiretap and search on the grounds that the evidence was tainted by a prior illegal wiretap. The district court granted the motion and the government appeals. Because defendants have no standing to challenge the first wiretap and consequently cannot suppress the second wiretap and search as derived therefrom, we reverse.

The government’s evidence consisted primarily of telephone conversations intercepted pursuant to court authorized electronic surveillance (Scasino wiretap) from December 17 to December 23, 1971, and gambling paraphernalia seized under search warrants executed on January 6, 1972. The finding of probable cause for the wiretap was supported by information from a confidential informant, observations of government agents, and transcripts of four telephone conversations intercepted in a prior wiretap (Vi-tanza wiretap). The probable cause for the January, 1972, search was based on the results of the Scasino wiretap.

Subsequent to. the execution of the two wiretaps the Vitanza wiretap was discovered to contain a Giordano defect and was therefore illegal.1 The defendants in this, case moved to suppress [49] the evidence obtained from the Scasino wiretap and the January, 1972, search as tainted fruit of the illegal Vitanza wiretap. The district court in granting the motion found that the Vitanza wiretap gave substantial impetus to the investigation of this case and that the government failed to demonstrate an independent basis of probable cause for the Scasino wiretap. Because defendants have no standing to suppress the illegal Vitanza wiretap or evidence derived therefrom, we find it unnecessary to pass on the correctness of the district court’s determinations.2

Standing is governed by 18 U.S.C.A. § 2518(10)(a), which provides that any “aggrieved person” may suppress the contents of an unlawfully intercepted communication or evidence derived therefrom. “Aggrieved person” is defined in 18 U.S.C.A. § 2510(11) as “a person who was a party to any intercepted wire or oral communication or a person against whom the interception was directed.” Strongly supportive of the government’s position that defendants are not aggrieved persons is United States v. Gibson, 4 Cir. 1974, 500 F.2d 854. Gibson attempted, as the defendants did here, to suppress a second wiretap, the probable cause of which was based partly on intercepted conversations obtained from a prior wiretap defective under Giordano. The initial illegal (Mantello) wiretap provided information to support a finding of probable cause for the issuance of a wiretap order against Commings. The Commings tap provided evidence damaging to Gibson. Since Gibson was not directly implicated by the Mantello wiretap, the court concluded that he was not a person “aggrieved” by that wiretap and held suppression to be improper. We are faced with a similar factual situation. The Vi-tanza wiretap directly implicated Andrew Scasino since his conversations were overheard, but there was no allusion to these defendants or their conduct. It gave impetus to the investigation of Andrew Scasino and to the Scasino wiretap, which lead to the discovery that these defendants were engaged in illegal gambling activities. But, as in Gibson, they were not directly implicated by the initial wiretap.

Defendants attempt to distinguish Gibson by asserting that the gambling operations which were the targets of the Vitanza and Scasino wiretaps constituted but one gambling operation. They argue that since the government requested postponement of the Vitanza wiretap inventory disclosure until the Scasino interceptions were completed, the government must have treated the two operations as but one operation. If that is the case, defendants argue, the Vitanza wiretap was “directed” at them, making them “aggrieved persons” within 18 U.S.C.A. § 2510(11). They suggest that the term “aggrieved persons” covers not only those persons whose conversations were intercepted or on whose premises the conversations occurred, but also those persons named in the wiretap order. Although defendants were not specifically named in the Vitanza wiretap order, the order did cover “others as yet unknown.” Consequently, the defendants urge that since the Vitanza wiretap was aimed at an operation of which the Scasino operation was a part, they were among “others as yet un[50] known,” and the wiretap was therefore directed at them.

We need not determine whether those named in a wiretap order, including those arguably covered by language such as “others as yet unknown,” have standing to suppress evidence derived from an illegal wiretap, since, because it is clear from the record that not one but two independent gambling operations were involved, the first wiretap could not have been “directed” at these defendants. The operation which was the subject of the Vitanza wiretap was supervised and directed by Vitanza. The second operation, the target of the Scasi-no wiretap, was controlled by Andrew Scasino and Pasquale Scasino. Each operation employed its own collectors to accept wagers on behalf of the operation. The Scasino operation relied significantly on “layoffs” of large bets from smaller operators. Vitanza made lay-offs to persons known only as “Vic” and “Paul,” but did not lay-off to the Scasino operation. Both operations had independent sources of “line information” or odds on various sporting events. None of Vitanza’s confederates were involved in the Scasino operation, and none of the defendants or other Scasino confederates were involved in the Vitan-za operation. The only thread to connect the two operations was the interception of four conversations between Vitanza and Andrew Scasino, out of more than one thousand conversations heard in the Vitanza wiretap, in which Scasino passed line information to Vitan-za. The actual conduct of the two operations never touched. The postponement of the Vitanza inventory was logical. Since Alfred Vitanza and Andrew Scasi-no, heads of the respective operations, were acquainted, Vitanza could have tipped Scasino to the fact of the Vitanza tap, and the federal investigation of Sca-sino could have been prejudiced by Scasi-no’s resulting caution. It does not follow that the two operations were conducted as a unit. Thus, the record clearly shows two independent operations sharing a miniscule bit of information.

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