United States v. Attilio Joe Spagnuolo

(concurring in part and dissenting in part):

I concur in the majority’s reversing disposition. This is because I agree that under the Supreme Court’s decision in United States v. Chavez, 416 U.S. 562, 579-580 , 94 S.Ct. 1849 , 40 L.Ed.2d 380 (1974), the application in support of the count one wiretap was not fatally defec-five and that the motion to suppress the evidence obtained from the count one wiretap should, therefore, not have been granted. Accordingly, the District Court must also reconsider its ruling on the count two wiretap, because the court’s decision rested upon a determination that probable cause for the count two wiretap was based upon the count one wiretap and that the evidence obtained from the count two wiretap thus constituted “fruit of the poisonous tree” under Wong Sun v. United States, 371 U.S. 471 , 83 S.Ct. 407 , 9 L.Ed.2d 441 (1963).

However, I cannot agree with the majority that an additional reason for reversing the order suppressing evidence derived from the count two wiretap is that the District Court erred in ordering production of the statements of government witnesses at the pretrial suppression hearing. Under the majority’s view, the accused is…

Spagnuolo and 12 others were charged, in one or both counts of a two-count indictment, with conducting an illegal gambling enterprise in violation of 18 U.S.C. § 1955 . Each count was based on evidence derived from different wiretaps. The government appeals from an order suppressing evidence derived from the questioned wiretaps. We reverse.

Both wiretap authorizations directly involved in this case were by court order pursuant to 18 U.S.C. § 2516 . Prior to trial, a motion was made to suppress all evidence derived from these wiretaps, in which it was asserted that: (1) the application for the wiretap supporting count one was approved pursuant to defective Justice Department procedures; and (2) probable cause for the wiretap supporting count two was derived from previous illegal wiretaps, among them the wiretap involved in count one. The district court indicated that it would grant the motion to suppress evidence derived from the wiretap involved in count one and ordered a hearing before a magistrate on the legality of the wiretap involved in count two.

At the magistrate’s hearing the government called four F.B.I. agents and a local deputy sheriff in an effort to…

515 F.2d 818 UNITED STATES of America, Plaintiff-Appellant, v. Attilio Joe SPAGNUOLO et al., Defendants-Appellees. No. 74-1272. United States Court of Appeals, Ninth Circuit. April 21, 1975. Robert H. Plaxico, Atty., Crim. Div., Dept. of Justice (argued), Washington, D. C., for plaintiff-appellant. George L. Cook and Arthur W. Ruthenbeck, Asst. Federal Public Defenders, (argued), San Francisco, Cal., for defendants-appellees. OPINION Before ELY and WALLACE, Circuit Judges, and LYDICK, * District Judge. WALLACE, Circuit Judge: 1 Spagnuolo and 12 others were charged, in one or both counts of a two-count indictment, with conducting an illegal gambling enterprise in violation of 18 U.S.C. § 1955 . Each count was based on evidence derived from different wiretaps. The government appeals from an order suppressing evidence derived from the questioned wiretaps. We reverse. 2 Both wiretap authorizations directly involved in this case were by court order pursuant to 18 U.S.C. § 2516 . Prior to trial, a motion was made to suppress all evidence derived from these wiretaps, in which it was asserted that: (1) the application for the wiretap supporting count one was approved pursuant to…