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UNITED STATES v. EBARE

June 2, 1976

UNITED STATES OF AMERICA
v.
SAMUEL L. EBARE, also known as "Sam" JOSEPH T. D'AGOSTINO, also known as "Joey" RICHARD MICHAEL BEACH, also known as "Sonny" LOUIS M. CAMERANO, RAYMOND CZERWINSKI, also known as "Baldy", Defendants



The opinion of the court was delivered by: MACMAHON

MacMAHON, District Judge.

Defendants Grezo, Camerano, Czerwinski, and Beach move to suppress all evidence derived from the interception, with court approval, of certain wire communications. Defendant Beach also moves to suppress certain physical items seized pursuant to a search warrant.

 The movants, along with co-defendants Ebare and D'Agostino, are charged with conducting an illegal gambling business, in violation of 18 U.S.C. § 1955, and with conspiracy, 18 U.S.C. § 371.

 Defendants claim, on two somewhat contradictory theories, that the wiretap evidence must be excluded at trial since the court authorization was defective. First, they contend that the order was issued without probable cause to believe that any individual was either conducting an illegal gambling business or conspiring to commit such an offense. Simultaneously, defendants contend that the application and order failed to identify as targets of the surveillance all persons whom the government had probable cause to believe were involved in the illegal gambling business, as required by Sections 2518(1)(b)(iv) and 2518(4)(a) of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-20 ("the Act"). *fn1"

 Judge Edmund Port signed an order on December 19, 1974 authorizing the interception of wire communications to or from the telephone located at the residence of Joseph D'Agostino, and any wire or oral communications at the home of Samuel Ebare. The government seeks to introduce statements intercepted pursuant to that order on both telephones between December 19, 1974 and January 7, 1975. The order was based on an affidavit of Special Agent Robert Kolevar of the FBI which purports to set forth probable cause to believe that Samuel Ebare, Joseph D'Agostino, Leon Cook, James Colloca, Frank Cali, Richard Michael Beach, and others as yet unknown were involved in an illegal gambling business.

 Kolevar recites information from three confidential sources. Source One identifies Ebare as the head man in the gambling operation, D'Agostino as the telephone man with whom Source One placed bets, and Cook as the collection and settle-up man. Kolevar also identifies the telephone at D'Agostino's residence as the number he called to place his bets. Source Two identifies Colloca as a bookmaker who worked as an agent for D'Agostino and Ebare. Source Three conveys information he had obtained from a third party, Source A, a close friend of Source Three and of D'Agostino. Source Three disclosed the identity of Source A to Kolevar.

 According to Source A, the Ebare gambling business had revenues in excess of $75,000 per week; there were two telephone men besides D'Agostino; and Beach worked primarily as a bookmaker and collector but took on other responsibilities, at Ebare's direction. Beach also met every week with Ebare, D'Agostino, and others to discuss the administration of the business, including settlement of debts. Both Ebare and Beach were known to use the telephone at the Ebare residence to arrange meetings with customers. Source A said that Cali worked primarily as a collector.

 Kolevar's affidavit also contains surveillance reports of meetings between the alleged conspirators, records of the past gambling convictions of Ebare, Cook, and Cali, and a record of conviction of Beach for grand larceny.

 Defendants contend that the affidavit of Kolevar does not establish probable cause to believe that any individual was conducting an illegal gambling operation, or that the telephone at the D'Agostino residence was being used to further that activity, since the information obtained through Sources One and Three was not shown to be reliable.

 When probable cause is sought to be established through information supplied by a non-disclosed informant, a judge or magistrate must be given sufficient data to enable him to determine whether the information is reliable. This includes the circumstances by which the informant came by his information and the reasons why the individual informant should be trusted. *fn2" Defendants claim under the second prong of this reliability test that neither Source One nor Source A was shown to be trustworthy.

 Corroboration of an informant by other sources, although unnamed, supports reliability. *fn3" The central fact that Ebare was the head of an extensive gambling operation was supplied by all three sources and supports the credibility of each. Moreover, Source One's information that D'Agostino was a bookmaker for Ebare is specifically corroborated by Sources Two and Three.

 Trustworthiness may also be established if the informant has previously supplied reliable information to law enforcement agencies. *fn4" Kolevar's affidavit stated that Source One had given information in the past which was accurate and had led to several arrests. Judge Port was, therefore, given sufficient data to assess the reliability of Source One, to determine that there was probable cause to believe that Cook, D'Agostino, and Ebare were engaged in an illegal gambling operation, and that bets were being placed through D'Agostino's telephone.

 Defendants next contend that since the information supplied by Source Three is double hearsay, it is inherently unreliable. Information obtained by one informant from a second unidentified source, however, may be sufficient to support a finding of probable cause if the underlying circumstances are such that the information appears credible. *fn5"

 The affidavit states that Source Three had been providing the FBI with information about gambling activities in the Syracuse area for over three years, much of it obtained by Source Three from Source A. That information was accurate and resulted in twenty arrests and four convictions. Considering this history of reliability along with the partial corroboration by Sources One and Two, the Kolevar affidavit contained ...


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