The opinion of the court was delivered by: WEINFELD
Edwin P. Wilson is named in an indictment returned by a grand jury in this district containing seventeen counts, all of which center about an alleged plot to assassinate witnesses or potential witnesses and other persons involved in prosecutions against him then pending or already concluded in the United States District Courts of Texas, Virginia and Washington, D.C. While awaiting trial or after trial and conviction in one or more of the latter prosecutions, Wilson was confined at the Metropolitan Correctional Center, New York City. Following his indictment in this district and while awaiting trial on the seventeen-count indictment, he was transferred and confined to the Federal Correctional Institution at Otisville, New York. A superseding indictment has been returned, adding an eighteenth count, which charges that while so confined at Otisville, Wilson endeavored to obstruct and impede justice in violation of 18 U.S.C. § 1503 -- essentially, that he attempted to secure the assassination of a principal witness in the upcoming trial, two Assistant United States Attorneys, his former wife, and others. The charge rests in the main upon information furnished by two inmates, David Vogel and John Randolph, concerning Wilson's alleged solicitation of their aid to effect his plan. Counsel for Wilson, substituted for his former counsel on the original indictment shortly before the scheduled trial date, has made an omnibus motion for relief that, after argument, is disposed of as follows:
1. RENEWAL OF MOTION PREVIOUSLY MADE BY WILSON'S FORMER COUNSEL TO DISMISS THE INDICTMENT FOR LACK OF IN PERSONAM JURISDICTION AND LACK OF PROPER VENUE AS IT RELATES TO THE EIGHTEENTH COUNT OF THE SUPERSEDING INDICTMENT.
This motion is denied for the reasons set forth in the denial of the prior motion.
Granted upon consent of the government.
3. DISCOVERY PURSUANT TO FED. R. CRIM. P. 16.
Except as consented to by the government, this motion is denied. Its wide-ranging scope suggests that the defendant is not seeking information to which he is entitled under the discovery rules to enable him to defend against the current charge, but that he is engaged upon a fishing expedition which, if permitted, would in effect require the government to disgorge material contained in its internal investigatory files.
4. HEARING ON AUDIBILITY OF TAPE RECORDINGS OF CONVERSATIONS OF WILSON ON SEPARATE OCCASIONS WITH VOGEL AND RANDOLPH.
The motion for such a hearing was granted. At the hearing, attended by the prosecution and Wilson's counsel, recordings of Wilson's conversations with Vogel on July 27, 1983 and with Randolph on August 3 and August 7, 1983 were heard. At the conclusion the Court found they were of sufficient audibility to warrant their admission to the jury if otherwise qualified for admission into evidence.
5. MOTION TO SUPPRESS STATEMENTS MADE BY WILSON TO VOGEL AND RANDOLPH ON A CLAIM THEY WERE OBTAINED IN VIOLATION OF DEFENDANT'S RIGHT TO COUNSEL UNDER THE SIXTH AMENDMENT OF THE CONSTITUTION OF THE UNITED STATES, OR, IN THE ALTERNATIVE, FOR A HEARING ON THE ISSUE.
The defendant contends that while confined at Otisville, statements made by Wilson to Vogel and Randolph were "deliberately elicited" by government agents and therefore should be suppressed under the authority of United States v. Henry3 and Massiah v. United States.4 However, the claim is without factual support. It rests solely upon the conjectural allegations made by his counsel based upon hearsay statements. There is no contradiction of the government's statement that prior to about the middle of June 1983 conversations with Randolph and Vogel were without government participation or knowledge; that both were acting on their own; that thereafter Randolph and Vogel, on their own initiative, informed prison officials at Otisville of Wilson's alleged new criminal activities; that subsequently on July 15, 1983, by written communication, they also brought the matter to the attention of the United States Attorney, indicating new criminal activity by Wilson; and that the tape recordings were obtained solely in the investigation of a new crime and thus beyond the pale of United States v. Henry and Massiah v. United States.5 Upon the conclusion of that hearing, in addition to the finding of audibility, already noted, the Court further found that Vogel and Randolph, prior to each recording, were explicitly instructed by an FBI agent that in any conversation with Wilson they were not to discuss trial or defense strategy or any information concerning the then pending indictment against him. There is no factual matter before the Court at this time to impugn the government's assertion that its sole purpose in making contact with Wilson through Vogel and Randolph was to pursue a good faith investigation of a new and ongoing crime. Upon the present state of the record, there is no basis either for a hearing
or for the suppression of the statements made to Vogel and Randolph.
6. THE MOTION FOR A HEARING "FOR THE PURPOSE OF CONTROVERTING THE SEARCH WARRANT."
Wilson's cell was searched and certain material seized pursuant to a search warrant issued by a United States Magistrate based upon an affidavit of an agent of the FBI which detailed therein information received from Vogel and Randolph as to their conversations with Wilson with respect to the latest plot to murder witnesses and other persons. The FBI agent, in addition to setting forth that information, swore that both were confidential informants of known reliability; that they had testified in the past in federal and state trials; that their testimony had been acceptable and reliable and resulted in several felony convictions; and that each had provided information to federal investigative agencies in the past. A reading of that affidavit compels the conclusion that the instant request for a hearing is without substance. The affidavit abundantly establishes probable cause for the issuance of the search warrant. Based upon the totality of circumstances set forth in the FBI agent's affidavit, the Magistrate had a ...