Appeal from an order of the District Court for the Western District of New York, John O. Henderson, Chief Judge, dismissing the indictments against defendants charged with using facilities in interstate commerce to promote gambling and conspiracy to do the same in violation of 18 U.S.C. §§ 1952 and 371. Affirmed as to all defendants except Rizzo and Passero, with regard to whom the order is reversed and the case remanded for further proceedings.
Danaher,*fn* Lumbard and Timbers, Circuit Judges.
On December 4, 1968, Stefano Magaddino, Peter Magaddino, Benjamin Nicoletti, Sr., Benjamin Nicoletti, Jr., Gino Monaco, Sam Puglese, Louis Tavano, Augustine Rizzo, Patsy Passero, and Michael Farella, since deceased, were indicted in the Western District of New York for use of facilities in interstate commerce to promote gambling and conspiracy to do the same in violation of 18 U.S.C. §§ 1952 and 371. Thereafter motions were made by the defendants to suppress evidence which they alleged the government had illegally seized as well as for all other appropriate relief. Chief Judge Henderson took evidence regarding these motions at hearings which commenced June 28, 1971 and concluded on July 30, 1971. On May 17, 1973 he ordered the government to supply the defendants with the reports, files, and memoranda compiled from the tapes and logs of illegal electronic surveillance conducted at three locations by the F.B.I. from 1961 to 1965. The court also ordered the disclosure of the identity of a confidential informant identified as the independent source named in affidavits used to secure twenty-two warrants in November 1968 authorizing searches of the homes of all the defendants, premises owned by several of their associates, and a number of automobiles. The court ordered these disclosures because
In the absence of some information concerning the confidential informant and the documents prepared from the illegal electronic surveillance, a conclusion by this court that the evidence presented in support of the original search warrants and subsequent indictment was obtained through sources untainted by the six years of illegal governmental activity, would not only be unsupported by the evidence of the record, it would be pure speculation.
The government was given twenty days to comply with the order or suffer dismissal of the indictment. On June 12, 1973, after this time limit had expired, the United States Attorney filed an affidavit declining to disclose the materials enumerated in the court order. The district court then dismissed the indictment the same day, and the government took this appeal. We affirm as to all defendants except Passero and Rizzo, with regard to whom we reverse.
The undisputed evidence adduced at the suppression hearing established that beginning in April 1961, the F.B.I. placed bugs at several locations in the Buffalo area, including the Magaddino Memorial Chapel in Niagara Falls, the Capitol Coffee Shop,*fn1 also located in Niagara Falls, and the Camelia Linen Supply Company in Buffalo. According to the government, the purpose of this electronic surveillance was to gather intelligence on a feud between the Magaddino and Bonanno families over control of certain illegal activities in Canada and the Western United States. The surveillance, which the government conceded to be illegal, continued until sometime in 1965. In the course of monitoring the bugs the F.B.I. agents overheard conversations engaged in by the Magaddinos and Benjamin Nicoletti, Sr.
As the conversations were monitored, they were tape-recorded. Logs were kept and reviewed on a daily basis by "coordinating" agents, who then prepared "channelizing" memoranda. The channelizing memoranda classified the information obtained and included the names of those persons whose conversations had been overheard and the names of individuals mentioned in the course of these conversations. Copies of the memoranda were then placed in the individual case files of each of the individuals named.
On the basis of the channelizing memoranda as well as other information contained in an individual's file, the agent assigned to that individual would from time to time prepare an investigative report, which would eventually be relied upon by the United States Attorney in deciding whether to prosecute that individual.
In addition to the channelizing memorandum and the investigative report, a "justification" report was prepared every three months for the purpose of justifying continued electronic surveillance. The report contained summaries of the intelligence gathered by the electronic surveillance since the previous justification report. Copies of the report were placed in the files of the individuals named.
Several other files were also maintained. A "dissemination of information" file contained copies of memoranda which had been sent to Washington, to other bureau offices and to state and local police. This information included intelligence derived from electronic surveillance. An organized crime control file was also maintained. It included copies of all the data placed in the files of those individuals suspected of having ties with organized crime. Information coming from local and state authorities was not kept in a separate file; this material went directly into the files of those individuals to whom it pertained. Finally, on the basis of information obtained from electronic surveillance, it was from time to time concluded that informants should be sought out. The recommendation for obtaining informants was also placed in the relevant individual case files.
Agents concentrating on organized crime had ready access to all individual case and control files. The intelligence obtained from the illegal electronic surveillance was not segregated from information legally obtained. The material obtained from the illegal taps was constantly supplemented and updated by new information, both legally and illegally obtained. Periodically, conferences were held to discuss the progress of various investigations. All agents assigned to organized crime were required to read and initial investigative reports prepared by other agents similarly assigned. In these reports as well as all other materials circulated, both an electronic and informant source of information were identified by the same symbol, so that, aside from the agent dealing directly with the source, no other person could determine whether the information had been obtained by electronic surveillance or an informant. A similar procedure was followed when information obtained from one bureau office was sent to other bureau offices around the country. This information was also placed in individual case files.
In November 1964, Special Agent Joseph Griffin, who was to prepare the principal affidavit in support of the search warrants authorized in 1968, was assigned to the Buffalo bureau of the F.B.I. His special interest was organized crime's gambling activities, but as an initial task he was assigned, due to his fluency in the Italian language and the Sicilian dialect, the task of translating those portions of the illegally taped conversations which were not in English. He was also required to listen to English portions of the tapes, however, so that he would understand the context in which the foreign language comments were being made.
Griffin admitted that, in the course of translating the tapes, he first heard the name of Benjamin Nicoletti, Sr., and learned of his ties with the Magaddinos. At the same time Griffin was also in charge of somewhere between 40 and 70 individual files relating to gambling. He did not deny that he may have heard the names of the defendants as well as others mentioned on the tapes which he translated. He also admitted the possibility that he had reviewed the files of the Magaddinos and Nicolettis. Griffin, who had never worked in Buffalo before, was able to develop an informant within one month of his arrival. ...