Appeal from the United States District Court for the Eastern District of Wisconsin. No. 71 CR 169 JOHN W. REYNOLDS, Judge.
Kiley, Senior Circuit Judge, and Pell and Sprecher, Circuit Judges. Kiley, Senior Circuit Judge, concurring.
An indictment returned in September 1971 in the Eastern District of Wisconsin charged eleven persons with conducting an illegal gambling business in violation of 18 U.S.C. § 1955.*fn1 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.*fn2 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.*fn3 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, 41 L. Ed. 2d 223, 94 S. Ct. 2622 (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, 38 L. Ed. 2d 86, 94 S. Ct. 63 (1974). The affidavit accompanying the application in 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 appellee 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. More particularly, the judge announced that he had "substantial doubts that the affidavit presents a probable cause showing sufficient to find" participation by five persons 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, supervise, direct, or own all or part of such business."
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.*fn4 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 . . . . The 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.' . . . The 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 knowledge, 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. (3) Information that the confidential sources attributed to their own unnamed sources, who were involved in Kenosha gambling activities and who, for the most part, were closely associated with DeCesaro. (4) Information that FBI special agents obtained through their own observations.
Most of the information in the affidavit came from reports by the FBI's confidential informants, whom the affidavit denominates as sources nos. 1 through 6. The affidavit devotes a paragraph to the background of each of these sources. All are Kenosha residents and are personally acquainted with at least one of the named alleged wrongdoers. Four are self-admitted gamblers who associate with other gamblers; one is a "bookie"; and one is a private citizen who volunteered information to the FBI.*fn5 Affiant Duffy vouched for the accuracy of their past tips about criminal activity. With the exception of informant No. 5, whose statements we have disregarded for the purposes of this opinion, the reliability and credibility of these confidential sources were ...