255 the] accused The corroborating evidence, moreover, need not independently establish the falsity of the testimony; 256 it is enough if it furnishes a basis to overcome the oath of the accused and his presumption of innocence.257 The rule has no application to elements of perjury other than falsity.258 As a corollary of the two witness rule, it is generally held that the evidence introduced to show the falsity of the accused's testimony must be direct.259 Circumstantial evidence alone will not suffice for conviction no matter how persuasive. Like the two witness rule, the direct evidence rule apparently applies only to the element of falsity.260 The emasculating effect these evidence rules have had on the threat of perjury as a guarantee of truthfulness in the evidence gathering process in organized crime investigations need not be belabored. Two illustrations should suffice. In United States v. Otto 261 the defendant was convicted of perjury committed during a grand jury investigation of two gambling syndicates. The object of the investigation was to establish a link between the two syndicates. The defendant, a member of one syndicate, was asked certain questions about the head of the other. He denied ever having "talked to" the other man. Although there was ample circumstantial evidence to indicate that conversations must have taken place, the Court of Appeals reversed the conviction on the basis of the direct evidence rule. An even more egregious result was reached in People v. O'Donnell.262 The defendant was convicted of perjury committed in a hearing on a motion for a new trial in a narcotics case. The false testimony alleged illegal conduct by the police supposedly witnessed by the defendant when he was an inmate in jail. The prosecution proved by jail records that the defendant was not in jail when he said he saw the alleged actions. The court observed that the evidence "unquestionably" would have supported the conviction if other than perjury was involved, but that under the direct evidence rule it could not stand. Indeed, the absurdity of these two rules has led to the development of exceptions. One leading case is People v. Doohy 263 The defendant gave testimony before a grand jury and at several trials that he had bribed certain public officials. One of the officials secured a reversal. When the defendant was again called to the stand, he testified that he did not remember bribing the official. Despite the two witness and the circumstantial evidence rules, the Court of Appeals affirmed the defendant's conviction for perjury and held that where direct evidence or the testimony of two witnesses is necessarily not available, the rules have no application. Other courts have followed 26 or employed 205 the reasoning of the Doohy decision. For that matter, in New York the holding has been so expanded that it is today questionable that the direct evidence rule remains the law.266 Federal courts, too, 255 Hammer v. United States, 271 U.S. 620, 626 (1926). 256 United States v. Neff, 212 F.2d 297 (3d ed. 1954). 257 Arena v. United States, 226 F.2d 227, 228 (9th Cir. 1955). 263 United States v. Hammer, 271 U.S. 620 (1926) (act of swearing and words sworn); United States v. Magin, 280 F.2d 74 (7th Cir.) cert. denied, 364 U.S. 914 (1960) (willfulness). Contra, United States v. Remington, 191 F.2d 246 (2d Cir. 1951), cert. denied, 343 U.S. 907 (1952). 250 Radomsky v. United States, 180 F.2d 781 (9th Cir. 1950); People v. Burcham, 62 Cal. App. 649, 217 Pac. 558 (1923). 280 United States v. Magin, 280 F.2d 74 (7th Cir. 1960), cert. denied, 364 U.S. 914 (1961) (willfulness). 281 54 F.2d 277 (2d Cir. 1931). 202 132 Cal. App. 2d 840, 283 P.2d 714 (1955). 283 172 N.Y. 165, 64 N.E. 807 (1902). 264 United States v. Nicolette, 310 F.2d 359 (7th Cir. 1962), cert. denied, 372 U.S. 942 (1963); Behrle v. United States, 100 F.2d 714 (D.C. Cir. 1938); People v. DeMartini, 50 Cal. App. 109, 194 Pac. 506 (1920) (dictum). 265 Johnson v. People, 94 III. 505 (1880). 286 People v. Wright, 28 Misc. 2d 719, 214 N.Y.S.2d 461 (1961) (handwriting expert circumstantial but sufficient); see People v. Calandrillo, 29 Misc. 2d 485, 215 N.Y.S.2d 355 (1961). 99 267 have been narrowing the scope of the rule. Sometimes it has been overcome by terming the available evidence "direct." Other times, the rule has been given a special twist to uphold the conviction. United States v. Collins 268 is illustrative. The defendant, the secretarytreasurer of a union, testified falsely about when minutes of a certain meeting were prepared and signed by him. The grand jury was seeking to determine when payments were made by the union to a wire tapper. The prosecution showed that the minutes had been typed on a typewriter with a style of type not in existence at the time the defendant said he signed them. The Court of Appeals held that the rule should be understood to require only evidence assuring a "solidly found verdict." 269 270 Closely related to the direct evidence rule are the cases holding that contradictory statements under oath may not be the subject matter of a perjury prosecution without the additional proof of the falsity of one of the statements.2 Dissatisfaction with this result led to the adoption of statutes in California,271 New York 272 and Illinois.273 Only at the Federal level does the rule today remain viable.277 The California statute deals only with false pre-trial testimony, which is used to institute a suit, and then only makes the subsequent contradictory testimony prima facie evidence of the falsity of the pre-trial testimony.275 The Illinois statute goes further and relieves the prosecution of the burden of pleading or proving which statement was false.276 The New York statute follows a similar It seems clear that the two witness and the direct evidence rules ought to be abolished. Suggestions that the existing rules are necessary "to protect honest witnesses from hasty and spiteful retaliation in the form of unfounded perjury prosecutions" 278 are unconvincing. Note first that the adopted remedy is broader than the alleged abuse. The existing rules apply across the board. They are not limited to situations where it might be reasonably supposed retaliation was involved. Further, it is obvious that the remedy is hardly adequate even as adopted. It can easily be circumvented merely by acquiring a spiteful accomplice. Thus, it is a bad rule even if you grant the possibility of the evil. The law, moreover, ought to encourage not testimony, but truthful testimony. The existing rules run counter to this goal; perjury, not truth, is protected. More importantly, the rules constitute an unwarranted slander on the power of discernment of prosecutors, grand juries, trial judges and the petit jury. The rules seem to assume that somehow the spiteful prosecution can be brought and a conviction obtained without the support of anyone other than the complainant. The existing rules are, in short, an unwarranted obstacle to securing legitimate perjury convictions. There is ample protection against spiteful retaliation in the traditional safeguards applicable to every criminal case. 267 United States v. Zborowski, 271 F.2d 661, 664 (2d Cir. 1959). 238 272 F.2d 650 (2d Cir. 1959), cert. denied, 362 U.S. 911 (1960). 200 272 F.2d at 652. United States v. Goldberg, 290 F.2d 729 (2d Cir. 1961), cert. denied, 368 U.S. 899 (1962), noted in dictum that Collins rejects, not follows, the direct evidence rule. 270 See, e.g., People v. Glenn, 294 Ill. 333, 128 N.E. 532 (1920). 271 CAL. PEN. CODE § 118(a). 272 N.Y. REV. PEN. LAW § 210.20 (effective Sept. 1, 1967). 273 ILL. ANN. STAT. ch. 38, § 32-2(b) (Smith-Hurd 1964). 274 See, e.g., United States v. Nessanbaum, 205 F.2d 93 (3d Cir. 1953); McWhorter v. United States, 193 F.2d 982 (5th Cir. 1952); United States v. Buckner, 118 F.2d 468 (2d Cir. 1941). 275 CAL. PEN. CODE § 118(a). 276 ILL. ANN. STAT. ch. 38, § 32-2(b) (Smith-Hurd 1964). 277 N.Y. REV. PEN. LAW § 210.20 (effective Sept. 1, 1967). The statute in its older form was effective. See, e.g., People v. Ashby, 203 N.Y.S.2d 854, 8 N.Y.2d 672 (1960). 278 Weiler v. United States, 323 U.S. 606, 609 (1945). It is assumed that no one would attempt to justify the rules on the "indefensible" oath against oath historical rationale. See 7 WIGMORE, EVIDENCE § 2041 (3d ed. 1940). There is no good reason why perjury should not be treated like any other crime. Sound prosecutive discretion and proof beyond a reasonable doubt to a judge and jury constitute ample protection against the unwarranted charge and conviction of perjury. On the Federal level, a statute dealing with contradictory oaths should also be adopted. There is much merit in the observation that consistency alone should not be a legislative goal.279 There is, however, a legitimate goal in allowing the prosecution to plead and prove its case in the alternative, showing the falsity by inherent logical inconsistency. Those who committed willful perjury ought not to be able to escape by placing the prosecution in a logic dilemma. It should be sufficient for conviction if the evidence shows either statement is false without specifying the false statement. There is no good reason why such proof should not be sufficient. THE USE OF ELECTRONIC SURVEILLANCE Each of the steps in the evidence gathering process discussed above works to produce the testimony necessary to make substantive prohibitions designed to deal with organized crime more than precatory trusts. Of far greater significance than any of these aspects of the process, however, is the use of electronic surveillance techniques to develop strategic intelligence concerning organized crime, to set up specific investigations, to develop witnesses, to corroborate their testimony, or to put together electronic substitutes for them. The Law. On the constitutional level, the Fourth Amendment prohibits the interception of any communication without the consent of one of the parties accomplished by a physical invasion into a constitutionally protected area.280 If one of the parties consents, 'no constitutional issues are presented, no matter where the interception takes place.281 If the interception is accomplished without a physical invasion of a constitutionally protected area, the question of consent is irrelevant.282 The Fifth Amendment as such places no ban on the use of electronic surveillance devices.283 The Sixth Amendment absolutely prohibits the surreptitious interrogation of an indicted defendant.284 The 270 MODEL PENAL CODE, 133 (Tent. Draft No. 6, 1957). 280 Silverman v. United States, 365 U.S. 505 (1916) (spike-mike). Compare Irvine v. California, 347 U.S. 128 (1954), with Mapp v. Ohio, 367 U.S. 643 (1961). The literature on electronic surveillance is overwhelming. Citations to the best pieces are collected in PAULSEN & KADISH, CRIMINAL LAW AND ITS PROCESSES 900 (1962). Mention must also be made of the recent studies of Prof. Alan F. Westin for the Association of the Bar of the City of New York, Issues and Proposals for the 1970's, pt. 1, 66 COLUM. L. Rev. 1003, pt. 2, 67 COLUM. L. REV. 1205 (1966). The major arguments are considered in ACLU, The Wiretapping Problem Today (pamphlet 1965). 281 Osborn v. United States, 385 U.S. 323 (1966) (recorder); Lopez v. United States, 373 U.S. 427 (1963) (recorder); On Lee v. United States, 343 U.S. 747 (1952) (transmitter and recorder). 283 Goldman v. United States, 316 U.S. 129 (1942) (dictaphone); Olmstead v. United States, 277 U.S. 438 (1928) (wiretap). 283 Hoffa v. United States, 385 U.S. 293 (1966) (admission overheard by informer; like result); Olmstead v. United States, supra note 282; cf. Stroud v. United States, 251 U.S. 15 (1919) (letters intercepted lawfully may be used against sender). 284 Massiah v. United States, 377 U.S. 201 (1964). 285 Clinton v. Virginia, 377 U.S. 158 (1964). 286 McLeod v. Ohio, 381 U.S. 356 (1965). 287 48 Stat. 1103 (1934), 47 U.S.C. § 605 (1958). 288 This is the interpretation of the Department of Justice. Testimony of Nicholas deB. Katzenbach, Hearings Before the Subcommittee on Criminal Laws and Procedures of the Sen. Comm. of the Judiciary, 89th Cong., 2d Sess. 34 (1966). The history of the Department's position is traced in Brownell, The Public Security and Wiretapping, 39 CORNELL L.Q. 195, 197-200 (1954), and criticized in Donnelly, Electronic Eavesdropping, 38 NOTRE DAME LAW. 667, 671-72 (1963). 280 United States v. Gris, 247 F.2d 860 (2d Cir. 1957). 200 Nardone v. United States, 302 U.S. 379 (1937). 201 Benanti v. United States, 355 U.S. 96 (1957). Fourteenth Amendment applies to state action the same limitations imposed upon Federal action found in the Fourth 285 and Sixth Amendments.286 291 On the statutory level, Section 605 of the Federal Communications Act of 1934 287 prohibits the interception and public disclosure of the contents of any wire communication or its interception and use for personal benefit.2 288 Section 605 applies to private persons,289 Federal agents, 290 and state agents.2 In addition, it it covers both interstate 292 and intrastate 293 phone calls. Listening on an extension with the consent of one of the parties does not constitute an interception.294 Evidence directly 294 or indirectly 295 obtained in violation of the statute must be suppressed in Federal 296 but not state courts.207 Only those whose privacy was invaded may object to a violation of the statute.298 Unaffected private citizens have no standing to complain.299 In addition, the actions of Federal officers are governed by Section 2236 of Title 18, United States Code, which prohibits, under criminal penalty, a search of any private dwelling or the malicious search of any other building or property without a warrant, not incident to an arrest, or without consent, 300 The actions of state officers are governed by the Civil Rights Act, which provides for civil 301 and criminal penalties. 302 On the state level, New York,303 California 30 and Illinois 305 have enacted legislation regulating or prohibiting electronic surveillance. New York authorizes ex parte bugging and wiretapping on court order on a showing of reasonable cause to believe evidence of crime may be obtained.306 The authorization lasts sixty days, but it may be indefinitely renewed.307 Emergency bugging is permitted when there is no time to obtain a court order.308 Unauthorized wiretapping and bugging are made criminal.309 Possession of wiretapping and bugging equipment is outlawed.310 On the other hand, California prohibits wiretapping,311 the electronic overhearing of conversations between those in physical custody and their attorneys, religious advisors or licensed physicians,3 312 and the installation of a bug by private parties without the permission of the owner of the place where it is installed,313 or the overhearing of any confidential communication without the consent of any party by any person, including Federal or state law enforcement 295 Nardone v. United States, 308 U.S. 338 (1939). 2006 Nardone v. United States, 302 U.S. 379 (1937). 207 Pugach v. Dollinger, 365 U.S. 458 (1961) (injunctive relief denied); Schwartz v. Texas, 344 U.S. 199 (1952) (evidence not suppressible); Williams v. Ball, 194 F. Supp. 393 (W.D.N.Y.), aff'd, 294 F.2d 94 (2d Cir.), cert. denied, 368 U.S. 990 (1961) (injunctive relief denied); United States ex rel. Griffin v. Hendrick, 360 F.2d 614 (3d Cir. 1966) (evidence not suppressible); People v. Dinan, 1 N.Y.2d 350, 183 N.E.2d 689, 229 N.Y.S.2d 406 (1962), remittitur amended, 11 N.Y.2d 1057, 184 N.E.2d 184, 230 N.Y.S.2d 212 (1962), cert. denied, 371 U.S. 877 (1962) (court order wiretap admissible). But where the evidence is obtained, in addition, in violation of state law, it will be suppressed. People v. McCall, 17 N.Y.2d 152, 269 N.Y.S.2d 396, 216 N.E.2d 570 (1966). McCall has had a substantial impact on the authorizing procedures for the use of electronic tools in New York. 298 Goldstein v. United States, 316 U.S. 114 (1942). 200 Hoffman v. O'Brien, 88 F. Supp. 490 (S.D.N.Y. 1949), aff'd, 339 U.S. 955 (1950). 300 There are no reported cases under $2236. Its application to electronic searches and seizures, therefore, remains an open question. A crucial issue would be whether or not a growth in the constitutional understanding of "search" would carry with it a growth in the scope of the prohibition of the statute. Cf. United States v. Southeastern Underwriters Assn., 322 U.S. 533 (1943). 301 REV. STAT. §§ 1979-80 (1875), 42 U.S.C. §§ 1983, 1985 (1964). Cf. Monroe v. Pape, 365 U.S. 167 (1961). 302 18 U.S.C. §§ 241-42 (1964). Cf. United States v. Price, 383 U.S. 787 (1966); United States v. Guest, 383 U.S. 745 (1966). The Practice. It is difficult to determine how much legal and illegal private and law enforcement electronic surveillance occurs. Federal law enforcement agencies have and are employing these techniques under varying limitations.317 These techniques are also being employed by law enforcement agencies on the state level.318 How much private use or illegal law enforcement use on the state or Federal level occurs cannot be definitely ascertained. There seems to be, however, a consensus that the use of these techniques is relatively widespread. The widespread existence of electronic surveillance has been made possible by the tremendous scientific developments which have taken place in the last half century. Microminiaturization in electronics and the invention of the magnetic tape stand out as the two most important. events. Much publicity has been given to the awesome potential of electronic devices: thumbnail-size microphones, cigarette package-size transmitters, induction coil devices for wiretapping. Methods of transforming the ordinary telephone into a microphone, which can be activated hundreds of miles away, have been demonstrated. Research has also developed a laser beam which under laboratory conditions can pick up conversations in a room from the outside window pane. Under ideal conditions, the parabolic microphone can be used to overhear conversations at distances from which they would otherwise be inaudible. Less widespread publicity has been given to the inherent investigative limitations on the practical use of these devices. It is often difficult if not impossible to install them safely where a surreptitious entry is required. Pairs must be located to wiretap. Often one or more additional entries are required to adjust the equipment. Power sources must be found. Monitoring them and analyzing their product consume an inordinate amount of time. Static and room noise interfere with reception often making use impractical. Wireless devices can be detected by sweeping. Wired equipment can be visually discovered. Often it is impossible to employ the devices because the neighborhood is hostile or there is insufficient time to set up the equipment. Indeed, despite the practical limitations, the potential is such that the wiretap or the wired bug remain the most productive electronic surveillance techniques where the consent of one of the parties to the conversation cannot be obtained. From a legitimate law enforcement standpoint, both require, if properly and safely installed and monitored, such an expenditure of effort, time, and manpower that normal investigative techniques are generally preferred. The Need. Ultimately, proposals to ban the use of electronic surveillance techniques turn on the same considerations which must be faced in considering proposals to authorize their limited use. The arguments for and 314 CAL. PEN. CODE § 653j. But see Johnson v. Maryland, 254 U.S. 51 (1920). 315 ILL. ANN. STAT. ch. 38, § 14-2 (Smith-Hurd 1964). Cf. People v. Kurth, 34 Ill. App. 2d 487, 216 N.E.2d 154 (1966). 316 ILL. ANN. STAT. ch. 38, § 14-6 (Smith-Hurd 1964). 317 See, e.g., Supplemental Memorandum for the United States, Black V. United States, No. 1029 Oct. term 1965, Sup. Ct., pp. 2-4. 318 Subcomm. on Constitutional Rights of the Sen. Comm. on the Judiciary, Wiretapping and Eavesdropping, Summary Report of Hearings 1958-61, 87th Cong., 2d Sess. 17-18, 40-44 (Comm. Print 1962). against wiretapping and bugging are essentially the same. No real distinction can be made between the techniques.319 Everything turns on the question of social need. Usefulness alone, of course, is not enough. The broader question of privacy must be included in the equation. In addition, the availability of alternative means of securing the evidence must be considered. In the final analysis, however, the conclusion must be the product of a careful and informed balancing. What must be done at the end of that process, moreover, seems unavoidable. The alternatives themselves are clear. If the case for the use of electronic surveillance techniques cannot be made, then they ought to be totally banned, and the ban strictly enforced. If it can be made, then authorizing legislation ought to be enacted. In either case, it seems clear that the existing legislation and its enforcement policies are inadequate. On this point alone, virtually everyone is in agreement. To examine the need for electronic surveillance techniques, it is first necessary to explore the two distinct but related purposes for which they may be used: strategic and tactical intelligence. Normally, law enforcement agencies react to the commission of specific crimes. A complaint is made or some evidence of criminal activity manifests itself in the course of routine patrol work. The agency then moves from known crime toward unknown criminal, a "Sherlock Holmes" approach. This is the approach most appropriate to incident crime, and it is the approach most familar to people who have little training in police work. Consequently, it reflects the popular conception of police work. Organized or professional crime, however, presents a different picture. Here there are identifiable individuals systematically setting out to and accomplishing criminal purposes. They expect to be in business over a long period of time.320 Here preventive police work offers a hope of success. Long term investigations may be set up without having first to isolate a particular criminal act. Dig long enough and evidence of their unlawful activity will turn up. | Against this sort of criminal ac1 tivity, strategic intelligence, that is, a look at the overall picture, is not only useful, but indispensable. The police, if they have a decent informant program, or if they just keep their ears open, will always know, in a general way, who is who, and what with whom the "whos" are up to. It is necessary, however, to verify this information. One must identify persons, criminal activities, criminal and non-criminal associates, and geographical areas of operation in greater detail than usual informant information gives you. Acting on general information without close regard to its accuracy is bad police practice because it subjects innocent people to unnecessary investigation and wastes precious manpower. The first purpose of electronic surveillance techniques, therefore, is to get hard information in those areas where existing intelligence data says one ought to look. The examination has as its purpose the establishment of probable guilt or probable innocence. Where the information comes back positive, further action can then 319 But see Donnelly, Electronic Eavesdropping, 38 NOTRE DAME LAW. 667, 682-84 (1963); Kamisar, The Big Ear, The Private Eye and the Lawman, 36 WIS. BAR BULL. 33, 45-47 (1963). The same basic invasion of privacy is involved in both since each overhear speech without consent. On the other hand, bugging also involves an invasion of place not present in wiretapping. To this degree, there is a difference, but it is one of degree not kind. 320 The extent to which these "businessmen" use the telephone is brought out in the Final Report of the McClellan Committee examination of the Apalachin meeting. S. REP. No. 1139, 86th Cong., 2d Sess., pt. 2, at 488 (1960). be intelligently planned based on the overall crime picture developed. Investigative priorities can then be set up both as to likelihood of success and the importance of an individual and his activity to the general administration of justice. Once the broad picture is painted, it is possible to move in and set up specific investigations, the ultimate tactical purpose of strategic intelligence. This sort of work can be done only haphazardly, if at all, using face-to-face secondhand information. Use of electronic surveillance techniques for tactical intelligence purposes seeks information for basically different purposes. The aim now is an arrest, trial, conviction and incarceration. It aims to bring the criminal process to bear on a particular situation. This narrow aim, of course, is pursued for broader goals. Hopefully, the invocation of the criminal process can bring about a better social situation, and certain kinds of antisocial behavior can be curbed. The main purpose, however, is limited. Hence the term "tactical." During the course of a specific investigation, electronic surveillance techniques are used to establish probable cause for arrest or search, to develop witnesses, or to obtain admissions of guilt. They may also be used at trial to corroborate or impeach testimony or refresh a witness' recollection. Theoretically, of course, all of these purposes can be achieved with the use of evidence not electronically seized. Why then is it so often contended that these techniques are not just needed but are indispensible? To answer this question it is necessary to consider several concrete investigations where these techniques were used. From this sort of examination, the indispensable character of wiretapping and bugging for any serious program of bringing criminal sanctions to bear on organized crime emerges. The most sophisticated use of these techniques-where the goal has been a criminal trial-has been made by the Office of the District Attorney of New York County. It has been testified that without electronic surveillance techniques, specifically wiretapping, this Office could not have achieved the convictions of James "Jimmy" Hines, John Paul "Frankie" Carbo, Charles "Lucky" Luciano and Anthony "Little Augie Pisano" Carfano.321 It is appropriate then to examine how those techniques were used in this representative sample of major investigations and prosecutions and to give some general attention to New York's overall experience with electronic surveillance, considering the needs of both law enforcement and privacy. JIMMY HINES: POLITICAL CORRUPTION In the early thirties Dutch Schultz, through the use 321 Subcomm. on Constitutional Rights of the Sen. Comm. on the Judiciary, Wiretapping and Eavesdropping, Summary Report of Hearings 1958-61, 87th Cong., 2d Sess. 41 (Comm. Print 1962). 322 The importance of using wiretapping and bugging to develop witnesses cannot be overemphasized. When you question an individual, what you base the questions on is crucial. The then Chief Counsel of the McClellan Committee, Robert F. Kennedy, makes the point: "The kind of proof makes a difference. He can say very forcefully someone's a liar-that's easy. But here we had his Davis. Davis and Hines met frequently, but at private parties, and Hines only met Schultz once, in 1932. The only way to get evidence on Hines or Schultz would be to get a man like Davis to turn states evidence or secure a confession or admission of guilt from Hines or Schultz. From June 10 to October 29, 1936, the District Attorney listened to a telephone in Hines' office, recording a number of calls which referred to Hines' share of the policy operation. As Schultz had been killed, Hines now ran the banks indirectly, and as each banker called up for protection or favors, the banker's conversation was recorded. These conversations were later used to enlist the banker's cooperation in the case against Hines.322 They also served as vital admissions. After Hines was indicted, Davis disappeared. A tap was placed on his wife's home telephone. From this tap, it was possible to trace Davis and obtain additional, necessary information on the policy racket. Ultimately, Davis cooperated with the prosecution, but only because of wiretap obtained evidence. Experience has shown over the years that only by facing certain individuals with their own voices can they be induced to co-operate. Without the use of wiretaps, it would thus have been impossible to determine the extent of the conspiracy or to secure the cooperation of the key witnesses. A number of policy bankers agreed to testify only after the District Attorney played their recorded conversation in their presence. The bankers realized that if they denied their involvement in the policy operation before the grand jury, they would face perjury charges. There would have been no corroboration of Davis's testimony without the wire-taps; this was the only direct evidence linking Hines to Dutch Schultz, a link necessary to establish the overall conspiracy. Hines was sentenced to 4 to 8 years in the penitentiary. The other conspirators pled guilty to lesser crimes. Without the use of wiretaps, the case could not have been made. In 1947, a New York grand jury investigating corruption in professional boxing returned a presentment which resulted in the enactment of Section 9133 of the Unconsolidated Law of New York. This Section makes it a crime to act as an undercover manager or matchmaker. In 1957 and 1958, the District Attorney of the County of New York conducted an investigation into corruption and underworld control of boxing. During the investigation nine wiretaps were ordered by the courts. A tap on the phone of Hymie Wollman, a manager in Frank Carbo's control, disclosed evidence that own voice on the tapes. He couldn't deny it." Quoted in MAGUIRE, EVIDENCE OF GUILT 247 n.16 (1959). Faced with the hard choice of talk, perjury, or contempt, knowing you have his own voice to keep him straight, the witness most often decides to cooperate. 323 Carbo has been identified as a member of the Gaetano Lucchese syndicate in New York City. Organized Crime and Illicit Traffic in Narcotics, Hearings Before the Permanent Subcommittee on Investigations of the Senate Committee on Government Operations, 88th Cong., 2d Sess., pt. 1, at 274 (1963). Carbo in fact was the real manager of the fighter Jimmy Peters, and that Wollman was merely a nominee. An examination of records or physical surveillance or traditional interview techniques would not have shown the real situation. A tap on the office phone of the International Boxing Club yielded evidence that the officers of the I.B.C. were under Carbo's control. Carbo, for example, was overheard ordering Billy Brown, the matchmaker for the I.B.C., to leave the office and meet him across the street. Brown was observed immediately thereafter obeying the order. Another intercepted message revealed that Carbo ordered Brown to come to Boston and Brown obeyed. Normal investigative techniques will not produce this. type of evidence, key evidence under Section 9133 or similar statutes dealing with undercover situations. It would be impossible to arrange to observe this kind of conduct unless you knew it was going to happen, or if you did see it, you would be unaware of its significance without advance information. Only the direct participants had the information, and they were not co-operating; an overhear was the only realistic alternative. The tap on the line of B. Wollman Bros. established that Hymie Wollman and Willie Ketchum were making payments to Carbo for his "services." This call was one of the overt acts charged in the conspiracy indictment brought against Carbo. These transactions were known firsthand only by the participants. They were not willing witnesses. Again an overhear was the only realistic alternative. Without wiretaps, the exact extent and nature of the conspiracy could not have been discovered by law enforcement officials, since most of the key transactions were conducted by telephone. There was nothing to investigate using normal techniques. Intercepted conversations not only established the criminal nature of the boxing business as run by Carbo, but were also used to convince witnesses to testify for the People. For instance, Fred Fierro, a trainer was reluctant until he heard the tape of a conversation between Carbo (with Wollman) and Peters (a boxer). Realizing that the District Attorney knew and could prove the relationship between Wollman and Carbo, Fierro began to cooperate. Questioning without the tapes yielded nothing but denials that could not be contradicted. This was a classic case where only the voice confrontation would work. Carbo pled guilty to three counts of the indictment after listening to the chief assistant district attorney's opening to the jury, which detailed out the People's proof. Carbo was sentenced to two years in prison. The prosecution could not have been successfully brought without the use of wiretaps. 324 Luciano was the founder of the nationwide cartel which is today so influ. ential in organized crime. Permanent Subcomm. on Investigations of the Senate Comm. on Gov't Operations, Organized Crime and Illicit Traffic in Narcotics, S. REP. No. 72, 89th Cong., 1st Sess. 5 (1965). A résumé of his activities appears One of the bases of Luciano's nationwide criminal empire was organized prostitution. The New York part of the prostitution included over 200 girls in at least ten different houses. Luciano was completely separated from the operation, and he never involved himself in its day to day workings. A raid on any house would, of itself, never have tied in Luciano. To keep this vast business functioning with maximum efficiency, it was necessary for the "managers" to use the telephone to direct the prostitutes to those houses where, on any given night, the business was heavier than usual. Apparently realizing that the telephones might be tapped, the "managers" changed numbers every month and changed locations almost as frequently. Three telephones were tapped from January 11, 1936, to February 1, 1936. The telephones were located in a house of prostitution, which was the headquarters of the operation. All of the phones were used by the manager and related to the activities of the prostitution ring. Conversations that were recorded gave the district attorney enough evidence to arrest over one hundred prostitutes and to build foolproof cases against managers. At the onset, the prostitutes were completely unwilling to cooperate, but when confronted with the evidence, some of them agreed to testify against their superiors, who in turn were persuaded, partly on the basis of the tapes, to testify against Luciano. Again the key to breaking the case was the recorded voices. Luciano was convicted and sentenced to 30 to 50 years in prison. Without the use of wiretaps, it would have been impossible to put together the evidence that was used to enlist the cooperation of the key witnesses necessary to tie in Luciano himself. A case could have been made against the operation by the use of traditional police techniques, but Luciano was so insulated from the overt criminal activities that there was no way to tie him to it without breaking those who had contact with him. It took incontrovertible evidence to break them. The wiretaps supplied it. Normal techniques would not have been successful. ANTHONY "LITTLE AUGIE PISANO" CARFANO: UNIONS 325 In 1953, a New York grand jury inquiry was begun into racketeering in union welfare funds. The investigation disclosed a conspiracy between syndicate members that controlled certain labor unions and insurance agents, who shared with the union officials monies owing to the agents as a result of insurance contracts placed by the unions. Some of the unions involved included the Distillery, Rectifying, and Wine Workers International, the Laundry Workers Union, and the Electrical Union. at pp. 795, 987, 1006 and 1035 in the Hearings of the above Committee, supra note 323, pts. 1-5. 323 Carfano has been identified as a lieutenant in the Vito Genovese syndicate of New York City. Organized Crime and Illicit Traffic in Narcotics, supra note 324, at 248. |