Cuba v. StateCuba v. State
The appellants in these consolidated appeals were defendants below in criminal prosecutions based on informations by which each was charged in a Count I with conspiracy to aid or assist in the conduct of a lottery, and in a Count II with aiding or assisting in conducting a lottery. Appellants, Eduardo Luis Flores, Fernando Alfredo Mateu, and Jaime Romero, by an additional count, were charged with possession of lottery paraphernalia.
Appellants, Tomas Rafael Llamas Almaguer, a/k/a Tomas Llamas, Reinaldo Demetris Meneses and Nery S. Cuba, pleaded nolo contendere with reservation of right of appeal from orders of denial of motions to suppress.
Llamas was sentenced on Count II to three years’ imprisonment to be followed by two years’ probation; and on Count I to a fine of $1,000.00 and one year probation to be served at the conclusion of the Count II sentence.
Meneses was sentenced to imprisonment for two years on each of Counts I and II with the sentences to run concurrently.
Cuba, on Count I, was placed on probation for one year with sentence withheld and, on Count II, was fined $1,000.00 and placed on probation for three years to run concurrently with Count I.
Appellants, Flores, Mateu, Romero and Pedro Pablo Sanchez pleaded not guilty and were convicted on jury trials.
Flores, convicted on Counts I and II and acquitted on the third count, was sentenced on Count II to imprisonment for two-and-one-half years to be followed by two-and-one-half years’ probation, and on Count I was fined $5,000.00 and placed on probation for one year to run concurrently with the Count II probation.
Mateu, on Count II, was sentenced to imprisonment for two-and-one-half years to be followed by probation for a like period; and on Count I, on which sentence was deferred, one year probation was imposed to run concurrently with the Count II probation. On the additional count a $5,000.00 fine was imposed with one year probation to run concurrently with the Count I probation.
Romero, who was found guilty only on Counts I and II, was sentenced on Count II to imprisonment for two-and-one-half years to be followed by probation for a like period; and on Count I was fined $5,000.00 and
Sanchez, found guilty on Counts I and II, received the same sentences thereon as given to Romero, as described above.
All of the appealing defendants argue it was error to deny their pretrial motions to suppress evidence obtained through utilization of or as a result of interception of wire and/or oral communications authorized by court orders. In addition, the appellants who were tried contend the court erred in refusing a request for a jury instruction as to the penalties provided by law for conviction of the offenses charged and lesser included offenses, and contend it was error to include as a condition of their probation that each of said defendants should pay restitution in the amount of $4,000.00 toward the cost of the investigation.
Dealing with those contentions of appellants in reverse order of the statement thereof, we hold the contentions of error regarding said condition of probation and as to denial of the requested jury instruction are without merit.
The refusal of the court to give the requested instruction as to penalties was not error. In Johnson v. State, 308 So.2d 38 (Fla. 1975) the Supreme Court held that the provision for such instruction as set out in
In contending that the court committed reversible error by denying their motions to suppress, the appellants present five grounds. On consideration thereof in light of the record, briefs and argument we hold they are without merit.
First, appellants argue that the official to whom the application was made and who entered the wire tap order was not a “neutral and detached magistrate“. In cases relied on by the appellants, Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1947) and Connally v. Georgia, 429 U.S. 245, 97 S.Ct. 546, 50 L.Ed.2d 444 (1977), it was pointed out that the requirement is that the official to whom the application is to be made and who is to determine probable cause shall be a neutral and detached magistrate, as distinguished from an officer engaged in the often competitive enterprise of ferreting out crime. Here that official, a circuit judge, fully met that requirement.
Thirdly, appellants contend the affidavit was insufficient because there was no “complete statement” as to failure of alternative investigation techniques, or as to why the latter were not utilized. That argument is predicated on the requirement of the statute [
The purpose of that requirement as stated by the Supreme Court of the United States with reference to a similar provision in the Federal statute, is “to assure that wiretapping is not resorted to in situations where traditional investigative techniques would suffice to expose the crime.” United States v. Kahn, 415 U.S. 143, 94 S.Ct. 977, 39 L.Ed.2d 225 (1974). Also it is held in federal decisions that it is not the purpose of that requirement that electronic surveillance must be foreclosed until every other imaginable method of investigation has been unsuccessfully attempted, “but simply to inform the issuing judge of the difficulties involved in the use of conventional techniques“. United States v. Pacheco, 489 F.2d 554, 565 (5th Cir.1974); United States v. Alfonso, 552 F.2d 605, 611 (5th Cir.1977). It is common knowledge, derived from experience, that conventional investigative techniques generally are insufficient for adequate and successful prosecutorial termination of such criminal lottery activities. See: United States v. Abramson, 553 F.2d 1164, 1171 (8th Cir.1977).
Further, appellants contend the affidavit was improper and insufficient due to the state‘s “Piggy-Backing” of wire tap orders. We have been shown no Florida decision bearing directly on that point. Appellants cite a Maryland case, Calhoun v. State, 34 Md. App. 365, 367 A.2d 40 (1977), in which it was held that a sufficient affidavit, on which a wiretap order had been entered, when used to support application for a wiretap at another location, with no statement repeated as to ineffectiveness of conventional investigation techniques, was insufficient, and that each affidavit must stand on its own foundation. We hold that appellants’ contention of “piggy-backing” is not applicable to the subsequent application here. The fact that an affidavit for a subsequent order was based in part on information derived from the prior affidavit does not invalidate the former where, as here, the second affidavit did not depend solely on the facts set out in the first; the facts of the prior affidavit were not insufficient; and the subsequent affidavit was based in part on facts derived by new and further investigation (United States v. Iannelli, 430 F. Supp. 151 (N.D.Pa. 1977)), and upon subsequent information supplied by F.B.I. agents. In United States v. Cantor, 328 F. Supp. 561 (E.D.Pa. 1971) it was held it was proper that the facts of an affidavit used for a prior intercept order should be included in a subsequent application affidavit,
A fifth argument of appellants was that the intercept orders were overbroad, so as to provide for a general search, citing Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231 (1927), and Stanford v. Texas, 379 U.S. 476, 85 S.Ct. 506, 13 L.Ed.2d 431 (1964), as having proscribed broad general search warrants. The record does not support that contention. The orders were properly limited as to scope and duration. It was so held with reference to an order with similar provisions, in United States v. Cohen, 530 F.2d 43 (5th Cir.1976).
For the reasons stated we hold no reversible error has been shown and the judgments appealed from are affirmed. We have considered and reject as without merit a cross-assignment of error filed by the State which presented a question relating to the sentences.
Affirmed.