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UNITED STATES v. CALE

March 4, 1981

UNITED STATES of America
v.
Ivan CALE, Franjo Ivic, a/k/a "Mali", Stipe Ivkosic, Nedjelko Sovulj, a/k/a "Nedo", Andrew Stambuk, a/k/a "Andre", Petar Stambuk, a/k/a "Pero", and Ante Caron, Defendants



The opinion of the court was delivered by: POLLACK

In an omnibus motion, defendants challenge the legitimacy and seek to suppress the fruits of court-ordered electronic surveillance and wire taps and of the search warrants issued subsequently and based, in part, on information obtained through the electronic surveillance and wire tap interception. Motions are also presented to dismiss the racketeering count, to hold a minimization hearing, to suppress the statement given by defendant, Andrew Stambuk, to sever from the trial the charges against defendants Sovulj and Caron, to dismiss the charges against defendant Caron and to furnish to the defendants bills of particulars of the indictment.

For the reasons indicated hereafter, the motions should be denied.

 An extensive and careful investigation by the Federal Bureau of Investigation and the New York Police Department Joint Terrorism Task Force resulted in the filing of a seven count indictment against the defendants on charges of racketeering, 18 U.S.C. §§ 1961-1962, explosives conspiracy, 18 U.S.C. § 371, interstate transportation of explosives, 18 U.S.C. §§ 844(d) and 2, attempt to use explosives, 18 U.S.C. §§ 844(i) and 2, and conspiracy to violate civil rights, 18 U.S.C. § 241.

 Probable Cause

 Defendants contend that the Government did not have probable cause upon which to base its application for permission to conduct electronic surveillance. Two United States District Judges, Judge Owen of the Southern District of New York and Judge Platt of the Eastern District of New York, were satisfied on the basis of the affidavit filed by Agent Maxwell of the FBI on November 20, 1980 that there was probable cause to believe that a conspiracy to assassinate one, Joseph Badurina, was in progress. Subsequently, Judge Owen, on December 10, and a third United States District Judge, Judge Daly of the District of Connecticut, on December 17, found that there was probable cause to believe that explosives and other instruments of crimes were being concealed at numerous locations.

 These judicial findings of probable cause to conduct investigatory activity are entitled to substantial deference. Aguilar v. Texas, 378 U.S. 108, 111, 84 S. Ct. 1509, 1512, 12 L. Ed. 2d 723 (1964); United States v. Vasquez, 634 F.2d 41 (2d Cir. 1980). "A (judge's) finding of probable cause is itself a substantial factor tending to uphold the validity of a warrant." United States v. Jackstadt, 617 F.2d 12, 13 (2d Cir.) (per curiam), cert. denied, 445 U.S. 966, 100 S. Ct. 1656, 64 L. Ed. 2d 242 (1980). "Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants." United States v. Ventresca, 380 U.S. 102, 109, 85 S. Ct. 741, 746, 13 L. Ed. 2d 684 (1965).

 In this case, however, on the independent review made by this Court, there is no doubt that the affidavits of Agent Maxwell established the existence of probable cause to justify electronic surveillance and interception of wire communications as well as the subsequent searches authorized December 10 by Judge Owen. An independent examination of the affidavits submitted on each of the applications confirms the existence of the requisite probable cause. The alleged misstatements (the Court finds there were none) were, in any case, legally irrelevant as unnecessary to a finding of probable cause. See Franks v. Delaware, 438 U.S. 154, 155-156, 171-172, 98 S. Ct. 2674, 2676, 2684, 57 L. Ed. 2d 667 (1978).

 Defendants have mistaken the tests on which to determine probable cause. Proof beyond a reasonable doubt is not required to justify a search and other investigatory activity. Ventresca, supra 380 U.S. at 107, 85 S. Ct. at 745. Circumstantial evidence is sufficient to establish probable cause in many cases. "(Affidavits) for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion." Id. at 108, 85 S. Ct. at 745. A fair and neutral reading of Agent Maxwell's affidavits leaves little doubt that there was a need for effective, clandestine investigation. No amount of parsing of the affidavits item by item can rob the reader of that conclusion.

 Similarly, in the case of the search warrant, signed by Judge Daly on December 17 to search the home of Ante Caron, the affidavit of Agent Cross, supplementing the affidavit of Agent Maxwell, convinces this Court, as it convinced Judge Daly, that there was a substantial basis for crediting the hearsay of the informants to the effect that Caron was a courier for certain members of OTPOR who were involved in illegal activities. See United States v. Rollins, 522 F.2d 160, 165 (2d Cir. 1975), cert. denied, 424 U.S. 918, 96 S. Ct. 1122, 47 L. Ed. 2d 324 (1976); United States v. Canieso, 470 F.2d 1224, 1231 (2d Cir. 1972). OTPOR is a political group which espouses freedom for Croatia; most of the defendants are members of OTPOR.

 Defendants argue that the Maxwell affidavit of November 20, 1980 lacks probable cause because it rests on the premise that OTPOR is per se a criminal conspiracy. On the contrary, the Government contends, only, that members of OTPOR, who are particularized by name, regularly committed terrorist crimes and have strong associational ties with subjects of the eavesdropping order, who are also particularized by name in the affidavit. The Maxwell affidavit also shows that members of OTPOR, especially Ivan Cale as its President, have an institutional motive for seeking to injure and impede Badurina's exercise of his civil rights; he is a prominent critic of the group. Finally, the affidavit shows the probability that Cale also has direct and close incriminating ties with defendants Ivic and Sovulj who utilized and operated the van which trailed their apparent target, Badurina.

 The attack on the December 17 affidavit of Agent Cross fails because the information provided by two different sources of Caron's criminal involvement with members of OTPOR is corroborated by the evidence obtained through physical surveillance, that Ivic, who returned from Bridgeport carrying a bag that matches the bag found in his apartment on December 12 which contained a bomb, made one of his two stops in Bridgeport, significantly, on the block proximately to Caron's residence.

 Probable cause was sufficiently demonstrated in all instances.

 Minimization

 The defendants complain of the unusual scope of the order for electronic surveillance contending that it offends the statutory obligation to minimize personal and private communications. See 18 U.S.C. § 2518(5). The scope of the order permitting total reception until a translator of the foreign tongue became available was a most reasonable expedient, temporary measure. As has been shown adequately, no advantage was taken of the scope of the order. By herculean effort, the Government was able to put agents and translators fluent in the Croation language on the wire almost at once and minimization as a practical matter was carried out almost from the start of the eavesdropping. These measures met the statutory requirement of reasonableness. Scott v. United States, 436 U.S. 128, 139-140, 98 S. Ct. 1717, 1724, 56 L. Ed. 2d 168 ...


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