The opinion of the court was delivered by: TRAVIA
OPINION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION
This case came on for trial on January 3, 1972. The defendants, Nicholas Mainello, Peter Candarini and Joseph Candarini, now before the court, along with twenty-eight other persons, were indicted on April 21, 1971.
The two count indictment charges substantive violations of Section 1955 of Title 18, United States Code, and conspiracy to violate the same statutory provisions in contravention of Section 371 of Title 18, United States Code.
Of the twenty-eight other defendants, three pleaded guilty to Count One (Conspiracy) and twelve pleaded guilty to Count Two of the indictment; eight defendants were severed for various reasons; and the indictment was dismissed as against five.
Each of the three remaining defendants, after having been advised of his right to a trial by jury, consented, in accordance with Rule 23, Fed. R. Crim. P., to have the case tried by the court without a jury.
They have also agreed with the Government to have the case tried on a series of exhibits without defense objection, except that the defense reserved the right to move for the suppression of certain evidence on the ground that it was obtained in violation of the Fourth Amendment. Defendants raise certain other arguments and seek further relief, including a judgment of acquittal and dismissal of the indictment against them.
This court will first treat with defendants' suppression and other "pre-trial motions." Findings of fact and conclusions of law will follow.
Defendants seek various types of relief usually sought prior to the commencement of trial. Their most important motion is one to suppress evidence obtained through electronic surveillance. Its primary target is Government Exhibit 1, which consists of selected portions of transcripts of conversations overheard at 2264 Bath Avenue, Brooklyn, New York, during the period from November 25, 1970 through January 23, 1971. The conversations were overheard by the use of electronic surveillance authorized by this court in a series of orders
issued pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520 ("Title III"). Defendants challenge the propriety of this court's orders, the adequacy of the applications therefor, and the manner in which the orders were executed.
Before discussing the several arguments raised by the defendants, certain preliminary points should be noted.
Title III represents the first comprehensive federal legislation in the area of wiretapping and electronic surveillance.
In passing this comprehensive legislation, Congress attempted to establish a limited system of wire surveillance and electronic eavesdropping within the framework of the Fourth Amendment and the guidelines laid down by the Supreme Court.
Congress plainly recognized the dangers inherent in the interception of wire and oral communications,
and, consequently, its essential purpose was to carefully delineate a uniform but limited set of circumstances and conditions under which the interception of wire and oral communications may be authorized, while establishing an elaborate set of safeguards to deter abuse and to expunge its effects in the event it should occur.
It is with an awareness of this Congressional purpose,
as well as an abhorrence of the misuse of electronic surveillance in our free society, that this court considers defendants' arguments.
It should also be noted that Congress has authorized certain procedures for moving to suppress the contents of any intercepted wire or oral communication, or evidence derived therefrom.
Thus, the defendants move not only pursuant to Rule 41(e), Fed. R. Crim. P., but also pursuant to 18 U.S.C. § 2518(10);
the Government's response is made pursuant to 18 U.S.C. § 3504(a).
(1) Defendants challenge the sufficiency of the probable cause on which the issuance of this court's first order authorizing electronic surveillance was founded and the existence of fresh probable cause for the subsequent orders. No further arguments are raised to develop their allegations.
The absence of probable cause for an order authorizing electronic surveillance would violate both the Fourth Amendment and Title III.
United States v. Leta, 332 F. Supp. 1357, 1361 (M.D. Pa. 1971). Whether such probable cause existed is to be determined by the contents of the application for the order and the affidavits in support thereof. United States v. Roth, 391 F.2d 507 (7th Cir. 1967). In considering the sufficiency of the supporting evidence, certain principles must be kept in mind.
The judge before whom a Title III application is made must act as a neutral and detached magistrate,
drawing inferences from the evidence presented
and independently assessing the probability that the facts were as alleged in the affidavit.
Probable cause may be found "upon evidence which is not legally competent in a criminal trial."
Where authorities, in applying for a warrant, rely completely on information furnished by an informant, there must be sufficient disclosure of the underlying circumstances from which the informant concluded that the suspect was engaged in criminal conduct and from which the authorities concluded the information was reliable. Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964). Where the informant's information is corroborated by other information, it must be shown that the information disclosed by the informant is at least as trustworthy as the informer's tip would need be to stand alone under Aguilar. Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969).
Several recent cases have dealt with the issue of probable cause under Title III and the Fourth Amendment and this court takes guidance from the principles enunciated therein.
Applications for the initial and extension orders were made by Special Attorney Joseph F. Lynch; they were supported by affidavits of John C. McGinley, a Special Agent of the Federal Bureau of Investigation. The initial affidavit contains information gathered by Agent McGinley and other agents under his supervision, information obtained from two confidential informants, and information contained in the records of the New York City Police Department. The subsequent affidavits reiterate the statements contained in the initial affidavit; they also contain relevant information obtained pursuant to the prior court ordered surveillances after reports were filed with this court in accordance with the terms of the said orders.
The fruits of Government surveillance are highly relevant to the issue of probable cause,
and, in this case, they clearly lead to an inference that a gambling business was being carried on by the defendants and others in violation of the New York State Law, and 18 U.S.C. § 1955, and 18 U.S.C. § 371 and that communications pertaining to such illegal conduct could be intercepted at the subject premises. Agent McGinley specifically averred that he
and other agents had, among other things, made the following observations: many exchanges of envelopes in or near the subject premises among the defendants and other persons, a minimum of 15 people per day double and triple parking in front of the premises and entering and remaining therein for 2 to 5 minutes, each of the named defendants closing the premises on various days at 4:30 P.M., defendant Joseph Candarini leaving the premises with a brown paper bag, no merchandise visible in the premises, and no activity consistent with the operation of a legitimate enterprise.
Independent investigation indicated Peter Candarini had previously been arrested for bookmaking; defendant Mainello had four gambling convictions.
Records of the New York Telephone Company also disclosed that bills for a telephone at the premises had been sent to defendant Joseph Candarini.
The information furnished by the two informants is most pertinent.
Their tips clearly implicate the defendants and others, namely Albert DeCicco, John Coiro, and Sam Weiss, in the suspected gambling enterprise, and they indicate that incriminating communications could be intercepted at the subject premises. Moreover, there is a clear showing of the facts upon which the informants based their information
and also a showing by Agent McGinley of facts underlying his conclusion that the informants were reliable and credible. Each informant had personal knowledge of the facts to which he averred. The first informant had provided at least twenty-five items of verified information on prior occasions, including information that assisted in another federal indictment and two arrests for federal gambling violations.
The second informant had similarly been reliable, having furnished information to federal authorities on seven prior occasions and having provided the New York City Police Department with information which led to the arrest of twenty-five persons for local gambling violations.
Moreover, the information which they offered was corroborated to some degree by the independent investigation of the federal authorities.
Finally, it should be noted that before the orders were issued, this court, cognizant of the evils which unchecked electronic surveillance generate, personally questioned the applicant for the orders and his supporting affiant. The orders were not granted in a willy-nilly exercise of power but rather after a thorough investigation had indicated that probable cause did indeed exist.
Thus, on review, this court finds nothing to indicate that its prior determinations of probable cause were erroneous. There can be no doubt that there existed probable cause to believe that the three named defendants and others, including Albert DeCicco, John Coiro, and Sam Weiss (a named defendant), had violated and were violating 18 U.S.C. § 1955 and 18 U.S.C. § 371; that conversations pertaining to their illegal activity could be obtained through electronic surveillance; and that the subject premises and the telephones located thereat were commonly used by the defendants, their three so-called suspected cohorts and others in connection with their illegal activity.
Therefore, the principles laid down in this area by the Supreme Court were adhered to and the mandates of the Fourth Amendment and Title III were not offended.
(2) Defendants maintain that the conversations to be intercepted were not described in either the applications or the orders with sufficient particularity to satisfy the Fourth Amendment. Analysis of the provisions of the orders and the contents of the applications reveals that the defendants' argument is without merit.
In enacting Title III, Congress intended to incorporate the Fourth Amendment particularity requirements as laid down by the Supreme Court in Berger v. New York, 388 U.S. 41, 87 S. Ct. 1873, 18 L. Ed. 2d 1040 (1967).
In Berger, the Supreme Court struck down as deficient on its face a New York wiretap statute which did not require "particularity in the warrant as to what specific crime has been or is being committed . . . 'the place to be searched' . . . [and] 'the persons or things to be seized.'"
Defendants' argument relates only to particularity of the "thing to be seized." In that regard, 18 U.S.C. § 2518(1)(b)(iii) requires that the application contain "a particular description of the type of communication sought to be intercepted"; 18 U.S.C. § 2518(4) similarly provides that the order shall specify:
"(a) the identity of the person, if known, whose communications are to be intercepted;
(b) the nature and location of the communications facilities as to which, or the place where, authority to intercept is granted;
(c) a particular description of the type of communication sought to be intercepted, and a statement of the particular offense to which it relates."
A pragmatic approach must be taken in determining whether the description requirements have been met. In disposing of an argument similar to the present one in United States v. Sklaroff, 323 F. Supp. 296, 307 (S.D. Fla. 1971), the court stated that it was not required that:
". . . the specific content of the anticipated conversations [be described]. It would be virtually impossible for the applicant for the order to predict in advance the exact language of a conversation which has not yet occurred. To impose such an absolute requirement upon an applicant would render Title III totally ineffective, because if the applicant guessed wrong on the exact predicted language, the evidence of the conversation would be inadmissible, even though it related to the crime under investigation."
In the case at bar, each of the applications specified that oral or wire communications of the defendants and others at 2264 Bath Avenue
". . . concerning offenses enumerated in Section 1955 of Title 18, United States Code, that is, offenses in violation of Article 225, Sections 225.0 [225.00] through 225.40, New York State Revised Penal Law, [McKinney's Consol. Laws, c. 40], which have been committed and are being committed . . ."
by the defendants and others were sought to be intercepted. The orders specified that oral and wire communications of the defendants at 2264 Bath Avenue pertaining to the above mentioned gambling offenses were authorized to be intercepted. Moreover, both the orders and the applications in parts pertinent to probable cause more particularly described the conversations to be intercepted. It is therefore clear that the particularity requirements of the Fourth Amendment and Title III have been complied with. See United States v. Perillo, 333 F. Supp. 914 (D. Del. 1971); United States v. Scott, 331 F. Supp. 233 (D.D.C. 1971); United States v. Vega, 52 F.R.D. 503 (E.D.N.Y. 1971).
(3) It is argued that the orders judicially sanctioned a continuing general search extending for an intolerable period of time. Berger v. New York, supra, and Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967) are cited in support of the argument. The Katz case did not involve the duration issue, and, therefore, it need not be considered.
Berger is on point, however, in that therein the Supreme Court clearly disapproved of a New York statute which allowed electronic surveillance for a period of two months without continuing judicial supervision or a requirement that probable cause be reestablished after some shorter period of time.
The framers of Title III clearly articulated their intention that, in accordance with the demands of Berger, the warrant under which the interception is authorized must limit that interception in scope and duration to the specific purpose of establishing the contents of the particular criminal conversations to which it is directed.
Thus, the time provisions under Title III were formulated with great caution. Title 18 U.S.C. § 2518(1)(d) requires an applicant to specify the period of ...