The opinion of the court was delivered by: KNAPP
The indictment in this case contains thirteen counts and names twenty-one defendants.
Count One charges defendants Dominic Tufaro, Ronald Marrazzo, Frank Pasqua Jr. ("Pasqua Jr."), Frank Pasqua ("Pasqua Sr."), Nicholas Bonina, Alphonse Carmine Persico, Anthony Augello, Frederic Sindona, John Donnelly, Ronald Seifert, Guido Penosi, William Castaldi, Louis Macchiarola, Michael Carbone, Mike Pagano, and Susan Kantor with a conspiracy to distribute heroin. Count Two charges Tufaro alone with organizing a continuing criminal enterprise in violation of 21 U.S.C. § 848. Counts Three through Five, which allege distribution of heroin and possession of heroin with intent to distribute, name Augello, Donnelly, Seifert, Persico, and Sindona. Counts Six through Eight also allege such possession and distribution, Count Six naming Tufaro, Marrazzo, Pasqua Jr. and Pasqua Sr.; Count Seven adds Macchiarola and Carbone to this list, and Count Eight names Bonina in addition to the four defendants named in Count Six. A final distribution and possession count, Count Nine, names Fonina alone. Counts Ten and Eleven, which allege a gambling conspiracy and participation in an illegal gambling business respectively, name Pasqua Jr., Pasqua Sr., Gabriel Letizia, Rosemary Pasqua, Frank Torrioni, William Cilenti, John Doe "Al", and Joseph Wilson. Count Twelve, a RICO count, has three parts. Part (a) charges Tufaro, Marrazzo, Pasqua Jr. and Pasqua Sr. with participation in a conspiracy to distribute heroin, and with distribution of heroin. Part (b)(i) charges Pasqua Jr. and Pasqua Sr. with participation in a gambling conspiracy; (b)(ii) alleges that Tufaro, Marrazzo, Pasqua Jr. and Pasqua Sr. "laundered the proceeds from their narcotics activity in a gambling operation." Part (c), which concerns the distribution fo these proceeds, also names these last four defendants. Finally, Count Thirteen charges Marrazzo, Pasqua Jr., Pasqua Sr., Kantor, and Pagano with harboring a fugitive.
We deal in this opinion with the numerous pretrial motions made by various of the defendants.
CHALLENGES TO ELECTRONIC SURVEILLANCE
It is undisputed that a great part of the Government's evidence in this case stems, either directly or derivatively, from electronic surveillance of the telephone of Pasqua Jr. and Rosemary Pasqua. The application of this wiretap, supported by the affidavit of September 15, 1982 of Special Agent Robert Liberatore of the Federal Bureau of Investigation ("Liberatore affidavit"), was presented to Judge Costantino of the Eastern District of New York, who on September 15, 1982 ordered the surveillance. As a result of evidence obtained from this wiretap, the Government applied for and was granted orders extending this wiretap, authorizing a wiretap on defendant Marrazzo's telephone and a "bug" in his apartment.
Defendants contend that the order for the initial Pasqua wiretap was not supported by probable cause. The Supreme Court has recently enunciated the standard to be used in assessing challenges to probable cause:
The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of the reviewing court is simply to ensure that the magistrate had a "substantial basis . . . for conclud[ing] that probable cause existed."
Illinois v. Gates (1983) 462 U.S. 213, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527 .
This "totality of the circumstances" test directs that, where an application is based on information provided by an informant, we must consider the informant's reliability, veracity, and the basis of his or her knowledge, without giving undue weight to or requiring that specific standards be met as to any one of these factors. We find that, applying this test to the application before us, the wiretap order was supported by a showing of probable cause.
In reviewing the decision of the issuing judge we may, of course, consider only the evidence which was actually before him. Aguilar v. Texas (1964) 378 U.S. 108, 109, 12 L. Ed. 2d 723, 84 S. Ct. 1509 n.1. We must also bear in mind precisely what the Government had to demonstrate by this evidence: namely, the involvement in narcotics activity of Pasqua Jr., whose phone was to be the subject of the tap. We therefore turn to the affidavit of Agent Liberatore.
We note first that Agent Liberatore does not purport to have any first-hand knowledge of any narcotics-related activities on the part of Pasqua Jr., or any other defendant, but rather relates information obtained from other FBI and Drug Enforcement Agency ("DEA") agents and three unnamed confidential informants, "Source A", "Source B" and "Source C." The Liberatore affidavit provides the following information as to these informants:
Souce A has been a confidential informant for the Federal Bureau of Investigation for a period in excess of three years, and during that time, his information has been proven to be reliable, and has been verified through other sources and independent investigation. Source A has been responsible for two arrests, one conviction and seizure of stolen property with a value in excess of $10,000. P1.
Source B's reliability has been previously established through corroboration of information he provided concerning criminal activity and has been established in connection with this investigation through independent information to effect that Source B has met and talked with several of the individuals identified in paragraph 2 [of the affidavit] on may occasions over the past 2 years. P4.
Source C is a convicted narcotics distributor, currently on federal parole, who has been providing information to Special Agents of the DEA in the period from approximately September, 1981 through the present. P19.
All parties are agreed that the information most crucial to the affidavit is that provided by Source B, who alone provides any direct information about Pasqua Jr. This information, as stated in the affidavit, is here reproduced:
5. Since May 1982, Source B has told Special Agent Schiliro that in the course of . . . conversations with ["several" of Tufaro, Macchiarola, Frank Ferraro, "Patsy Pontiac"] he has learned that Dominic Tufaro, together with RONALD MARRAZZO, operates a very large scale heroin distribution organization, in which FRANK PASQUA, JR. assists them. Source B also related that Dominic Tufaro and RONALD MARRAZZO are both fugitives, and that they work together in their narcotics business as partners.
7. In several conversations over the past seven months and as recently as the week of August 1, 1982, FRANK PASQUA, JR. told Source B that his work for Dominic Tufaro and RONALD MARRAZZO includes receiving quantities of heroin from Tufaro and/or MARRAZZO, delivering the heroin to distributors in Manhattan, Brooklyn and Queens, and returning to Tufaro and Marrazzo the proceeds which he picks up from the heroin distributors.
8. Since May 1982, Source B has told Special Agent Schiliro that one of the members of Tufaro and MARRAZZO's business explained that because Tufaro and MARRAZZO are fugitives, they are extremely cautious about meeting anyone they don't know and trust or going places where they might be observed or recognized. Thus, Source B said that FRANK PASQUA, JR. serves as an intermediary for both Tufaro and MARRAZZO in their narcotics distribution business and, in this connection, uses his telephone (212) 442-1245 to relay messages and arrange narcotics transactions.
9. Since May 1982, Source B has told Special Agent Schiliro that in conversation with one of the participants in Tufaro's narcotics operation during the past year he has been told that Tufaro and MARRAZZO have a number of heroin customers, including John Donnelly and Ronald Seifert, whom they supply with kilogram quantities of heroin.
10. Since June 1982, Source B has related that during the past 60 days he has been in regular telephone contact with PASQUA over telephone number (212) 442-1245 at his home at 153 Jackson Avenue, Staten Island, New York. During several of these conversations, PASQUA has discussed with Source B PASQUA's ongoing narcotics business.
11. During the week of July 18, 1982, Source B spoke to FRANK PASQUA, JR. on telephone number (212) 442-1245. They discussed problems PASQUA has encountered with one of the group's distributors, and the supply of heroin to a location in Manhattan.
Additionally, Agent Liberatore states that FBI Special Agent Leahy "observed" Source B place a phone call to Pasqua Jr.'s number and "overheard [Source B] discuss narcotics distribution," which conversation Source B subsequently asserted to Leahy had taken place with Pasqua Jr. P12. Finally, Liberatore states that his own research indicated that regular calls were placed from Pasqua Jr.'s phone to a phone located at an address where Marrrazzo received mail.
Confirmation of certain details of Source B's information, although not of any information directly concerning Pasqua Jr., is provided through the two other informants. Source A confirms that Tufaro was involved in a large-scale heroin operation up until 1975, the last date on which the two were in "personal contact." He also confirms that Tufaro has been a fugitive since that time. P2. Tufaro's prior conviction for distribution of heroin and his fugitive status since 1975 are further confirmed by Agent Liberatore. P6. Source A further states that he has been informed "over the past eight years," by unnamed associates of Tufaro's, that Tufaro continues to control a large-scale distribution network through "several closely trusted individuals," refusing to deal with anyone else. P3. Source C was directly involved, along with an undercover agent, in buying narcotics from two named individuals whom Source B identifies as customers of Tufaro's and Marrazzo's.
Before proceeding to apply the Gates analysis to this information, we make a few observations as to the general standard to be applied by a court reviewing a magistrate's -- or, as here, another judge's -- finding of probable cause. As the Supreme Court recently reiterated in Gates, "[a] grudging or negative attitude by reviewing courts toward warrants," . . . is inconsistent with the Fourth Amendment's strong preference for searches conducted pursuant to a warrant." 103 S. Ct. at 2331, quoting United States v. Ventresca (1965) 380 U.S. 102, 108, 13 L. Ed. 2d 684, 85 S. Ct. 741 . We may thus, as Gates reminds us, not engage in a de novo review or apply overly rigorous standards of proof to a finding of probable cause. Rather, we are bound to consider the order as having a presumption of validity, United States v. Londono (2d Cir. 1977), 553 F.2d 805, 810; United States v. Fury, (2d Cir. 1978) 554 F.2d 522, 810; cert. denied, 436 U.S. 931, 56 L. Ed. 2d 776, 98 S. Ct. 2831 ; and give "great deference," Spinelli v. United States (1969) 393 U.S. 410, 419, 21 L. Ed. 2d 637, 89 S. Ct. 584, to the determination of the issuing judge. If he had a "substantial basis" for determining that probable cause existed -- which analysis we must perform in the same commonsense, non-technical manner as the issuing judge applied to his own determination -- we may ask no more.
We agree with defendants that Source B's information is not of the type found so powerful in Gates, supra, or Draper v. United States (1959) 358 U.S. 307, 3 L. Ed. 2d 327, 79 S. Ct. 329, in which informants provided "details relating not just to easily obtained facts and conditions existing at the time of the tip, but to future actions of third parties ordinarily not easily predicted." Gates, supra, 103 S. Ct. at 2335. The infomants in these cases had provided specific descriptions of the suspects' modus operandi, point and time of departure and arrival, and even -- in Draper -- manner of dress and walk. While the Government has contended that Source B has provided similarly specific information as to Pasqua Jr.'s modus operani, we cannot agree that the use of a telephone by a suspected narcotics trafficker is analogous to the elaborate scheme of traveling and transporting drugs employed by the defendants in Gates.
However, the fact that Source B does not provide such miniscule details about Pasqua Jr.'s alleged illegal activities does not, as defendants imply, vitiate the valuable information which he does supply. Source B makes specific allegations as to certain individuals whom he names as Pasqua Jr.'s "bosses" and customers, thus sketching the outlines of the purported narcotics operation. Further, and more important, he relates evidence gathered from his observations of and conversations with Pasqua Jr. as to Pasqua Jr.'s activity in narcotics trafficking. Much of this information is attributed to specific telephone calls between Source B and Pasqua Jr. which occurred during specified periods of time (although we note that the precise dates of these calls is not given, presumably to avoid facilitating the defendants' recognition of Source B). The fact that this information is attributed to specific sources, chief among which is the defendant himself, lends to Source B's information a support glaringly absent from Gates, where the informant's "letter gives absolutely no indication of the basis for the writer's predictions regarding the [defendants"] criminal activities." 103 S. Ct. at 2326.See also In re Grand Jury Proceedings, 716 F.2d 493 (8th Cir. 1983).
Nor, indeed, need evidence be as detailed as that in Gates to warrant judicial approval. Indeed, the evidence of illegal activity here is far more direct and significant than the evidence on which the court upheld a search warrant in United States v. Perry (2d Cir. 1981) 643 F.2d 38, cert. denied, 454 U.S. 835, 102 S. Ct. 138, 70 L. Ed. 2d 115. In that case, the affidavit supporting the warrant described three-year-old evidence of narcotics trafficking and current evidence of surveillance precautions at the suspect's house:
automobiles (the usual Rolls Royces and Mercedes Benzes) linked to trafficking in the driveway or speeding away upon sight of the officers; and a statement by [the suspect's wife] that "[t]he Police know what Leroy is doing at the house, he pays a lot of people, he conducts his business out of the house every afternoon." She further stated to the officer that Butler did not live at the house and that he just came there every day to conduct his business.
The value of even the more general assertions made by Source B is demonstrated by its direct and persuasive corroboration by Agent Leahy's observation of a narcotics-related telephone call to Pasqua Jr. We reject defendants' contention that this corroboration is worthless because Agent Leahy did not hear the other side of the conversation and thus had no way to confirm his statement that Pasqua Jr. -- or indeed anyone -- was on the other end of the telephone. This argument, we think, is conceivable but not reasonable. Affidavits in support of warrant applications are to be reviewed, not by scrutinizing every possible implication, twist or turn of the language and evidence presented, but "in a commonsense and realistic fashion," United States v. Ventresca, supra, 380 U.S. at 108. It is a commonsense and realistic presumption that when a call is placed to a certain telephone number, and a conversation ensues, the person to whom that number belongs is a party to the conversation. "Courts should not invalidate . . . warrant[s] by interpreting affidavit[s] in a hypertechnical, rather than a common sense manner." United States v. Ventresca, supra, 380 U.S. at 109. We see no reason why Judge Costantino should have assumed, as the defendants urge, that Leahy, who was an FBI agent and not a member of the DEA, misunderstood the subject of the conversation, or was tricked into the misconception that Pasqua Jr. was on the phone with Source B; nor do we see any reason why we should now accept this far-fetched explanation.
Source B's assertion that Pasqua Jr. uses his phone to conduct narcotics-related activity is further corroborated by the analysis of toll logs performed by Agent Liberatore. Although a pattern of calls to a number, even one identified with a residence where an alleged narcotics dealer and fugitive receives mail, is not in itself probative, it is highly suggestive. Indeed, in United States v. Todisco (2d Cir. 1982) 667 F.2d 255, cert. denied, 455 U.S. 906, 102 S. Ct. 1250, 71 L. Ed. 2d 444, probable cause for a wiretap was upheld because, in part, pen registers demonstrated a pattern of calls to known narcotics dealers. While the Liberatore affidavit does not show a "close proximity in time" between these calls and "known sales" of narcotics, 667 F.2d at 258, as did the affidavit in Todisco, in the context of the call overheard by Leahy it lends color to Source B's general assertions of a pattern of narcotics activity. Finally, Source A's statements about Tufaro's past and present narcotics activities, although not confirmation of any of Source B's information about Pasqua Jr., serve to place Pasqua Jr. in contact with a "known narcotics dealer," a fact which we may consider in determining whether probable cause existed to believe that Pasqua Jr. was himself involved in such activity. Perry, supra.
We turn, finally, to the issue of the veracity or reliability of Sources A, B and C. The holding in Gates that this criterion need not be meticulously proven, as some previous decisions had required, is strikingly illustrated by that case's approval of a search warrant based upon information from an anonymous letter-writer as to whose veracity the issuing magistrate of necessity had no information. In light of this, we are not overly concerned by certain points in the "pedigrees" of Sources A and B, quoted above, with which the defendants take issue.
We need devote little space to defendants' challenges to Source A's veracity. Although all information provided by him as to Tufaro's and Marrazzo's activities after 1975 originates from unnamed sources, his "pedigree" prior to that time is unimpeachable and is set forth in enough detail to satisfy even the most grudging review. In light of the secondary and corroborative nature of his information, we do not think that this flaw is serious enough to warrant a finding of no probable cause.
Nor are we overly concerned that Source B's credentials are not presented in as much detail as Source A's. Contrary to defendants' assertion, it is not necessary that the affidavit state the number of arrests or convictions with which an informant can be credited. It is, of course, undeniable that Source B's "pedigree" is quite generally stated. Indeed, we cannot help but find it vague as to the establishment of his reliability in connection with the investigation in this case, since it does not even specify whether the individuals as to whom there is "independent evidence" that Source B "has met and talked" are defendants in this case. However, the description of his reliability is nonetheless sufficiently specific to withstand the defendants' challenge. Indeed, it is more specific than that approved by the Court in United States Martinez-Torres (S.D.N.Y. 1982) 556 F. Supp. 1236. In that case, the affidavit stated merely that the informant's "reliability has been established previously and has been established by the investigation conducted in this case." 556 F. Supp. at 1249. The court held that this statement, "even if inadequate by itself to satisfy the veracity [test], is corroborated by independent DEA investigative efforts." In that case, which involved narcotics and firearms violations, the following corroboration was found sufficient:
[W]hen agents approached the two men who had just left Apartment 5B, "two (2) handguns were thrown out of the vehicle they had entered after they left Apartment 5B." Not only does this incriminating corroboration suggest efforts at concealing criminal activity, but it also lends some direct support for the informant's earlier statement that Apartment 5B was used as a storage of weapons.
We find that the corroboration provided by Source B's overheard telephone call is at least as suggestive, if not probative, of alleged criminal activity as the above. Agent Leahy's statement directly corroborates the veracity of both levels of Source B's claims: first, that Pasqua Jr. was involved in narcotics distribution; and second, that Sourc B was in possession of this information because Pasqua Jr. was in the habit of discussing it with him over the telephone. We are also mindful of the "consistently recognized . . . value of corroboration of details of an informant's tip by independent police work," Gates, supra, 103 S. Ct. at 2334. Here the various agents corroborated not only Source B's general allegation as to Pasqua Jr.'s involvement in narcotics trafficking, but also as to his connections and frequent telephonic communcations with various narcotics dealers and fugitives.
As the Supreme Court said in Gates,
the informant's "veracity" or "reliability" and his "basis of knowledge" . . . are better understood as relevant considerations in the totality of the circumstances analysis that traditionally has guided probable cause determinations: a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.
103 S. Ct. at 2329. See also United States v. Peyko, 717 F.2d 741 (2d Cir. 1983).
Thus, the fact that one of the informants made any specific predictions as to the defendants' behavior, or gave detailed descriptions of their narcotics activity -- which, we repeat, does not in any event vitiate their tips -- is more than adequately compensated for here by their established histories of veracity and by the corroboration of their information both by "independent police work" and by each other. See United States v. Vazquez (2d Cir. 1979) 605 F.2d 1269, 1281, cert. denied, 444 U.S. 981, 62 L. Ed. 2d 408, 100 S. Ct. 484 . Considered as a whole, the evidence before Judge Costantino was thus enough to demonstrate "something more substantial than a casual rumor circulating in the underworld or an accusation based on an individual's reputation," Spinelli, supra, 393 U.S. at 416. No more is or ever has been required.
Defendants further contend that, even if the Liberatore affidavit justified Judge Costantino in ordering the use of electronic surveillance, it contained mistakes which, if corrected, would no longer support a finding of probable cause. They request the remedy mandated by the Supreme Court in Franks v. Delaware (1978) 438 U.S. 154, 155-156, 57 L. Ed. 2d 667, 98 S. Ct. 2674 :
where the defendants makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendants' request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.
Most of the defendants' challenges to the Liberatore affidavit stem from their assumption that "Source B," who as we have said is unnamed in the affidavit, is in reality one Dennis Mulligan, an acquaintance of Tufaro, Marrazzo, and Pasqua Jr. Since the Government has not directly controverted this hypothesis,
we must accept it as true for purposes of this motion.
Assuming, then, that Source B is Dennis Mulligan, we must agree with defendants that the Liberatore affadivit failed to mention two circumstances relative to his credibility. First, Dennis Mulligan was previously convicted of perjury.
Second, Mulligan was dropped from an indictment
in May, 1982, approximately the same time that, according to defendants' hypothesis, he became active as "Source B."
As a threshhold matter, the remedy of a Frank hearing applies when the Government's affidavit omits a material fact, as well as when it contains material misrepresentations. United States v. Shakur (S.D.N.Y. 1983) 560 F. Supp. 318, 328; United States v. Dorfman (N.D.Ill. 1982) 542 F. Supp. 345; United States v. Vazquez, supra, 605 F.2d at 1282. To do otherwise "cannot be squared with Franks" demand that the Government not frustrate the magistrate's review of probable cause by deliberately or recklessly providing misleading information." United States v. Dorfman, supra, 542 F. Supp. at 367.
There is no merit in any of the Government's arguments that there omissions were not at least reckless. We have no reason to disbelieve Agent Liberator's claim that he had "never heard the name Dennis Mulligan" prior to the defendants' submission of these motions, Liberatore affidavit of June 13, 1983 at P5 -- and thus, presumably, that he had never heard of the above facts about Mulligan and would not have noticed their omission from an affidavit. However, this gets the Government nowhere. What Liberatore may not have known was obviously within the knowlege of the agent who, under Liberatore's supervision, was responsible for Source B's activities; and -- as Franks makes clear, 438 U.S. at 163-164 n.6 -- it was Liberatore's obligation to ascertain and present to the issuing judge all facts concerning the informant's reliability that may have been within the knowledge of agents acting under his supervision.
We thus pass to the question of whether "the affidavit would have been insufficient to establish probable cause if the omitted material were included." nited States v. Balistrieri (E.D.Wisc. 1982) 551 F. Supp. 275, 278. In this we are essentially faced with a question of first impression. Gates removed a great deal of the emphasis which prior cases, stemming from Aguilar v. Texas, supra, had placed upon the credibility of an informant. In Gates, however, the Court was faced with an anonymous informant about whom nothing, either good or bad, was known. We, on the other hand, must decide what effect upon the "totality of the circumstances" must result from information detrimental to an informant's established credibility. While we do not by any means condone the omission, in whatever way or for whatever reasons made, we find that the particular facts omitted, considered in detail and in context, are not so grave as to affect probable cause.
In appraising the importance of the omissions, we must take into account that, on the facts already disclosed to him, Judge Costantino must have assumed Source B to be a cooperating individual hoping to gain governmental favor as a result of his cooperation. Such an individual, by hypothesis, is one who has committed a crime or crimes carrying with it or them sentencing consequences of sufficient gravity to make cooperation worthwhile.
What new light would be shed upon such an individual's "reliability" by the information withheld here?
In the first place Judge Costantino would have been advised that the prosecution for one of the individual's criminal activities had actually proceeded to the point of indictment before any cooperation understanding had been reached. We fail to see any significance in this time sequence. Secondly, he would have learned that the individual had been convicted of "perjury." However, a full disclosure of the pertinent facts would have revealed that this perjury was committed in a grand jury investigation in which the individual was a target and in the course of which -- in unsuccessfully protesting his innocence -- he had denied making a certain telephone call of less than two minutes' duration to an alleged co-conspirator. This denial came into unhappy conflict with the telephone company's long-distance records, but there was no indication of the content of the call or whether or not it had any criminal significance. Certainly, this information could not rationally cause a judge to question information given by an otherwise realible informant such as Source B.
We need devote less time to defendants' other allegations of misstatements. The Liberatore affidavit states that "[d]uring the week of July 18, 1982, Source B spoke to FRANK PASQUA, JR. on telephone number (212) 442-1245. They discussed problems PASQUA has encountered with one of the group's distributors and, the supply of heroin to a location in Manhattan." PF(11). Pasqua Jr. asserts that the only phone call to which this could possibly refer was with Dennis Mulligan, but that the content of the call is misrepresented by the affidavit. At oral argument, counsel for Tufaro, who presented this motion, candidly admitted that this allegation might be "a little too self-serving to pass muster with the Court" and hence might provide insufficient grounds, on its own, for a Franks hearing. Tr. at 95. We agree that this does not amount to the "substantial preliminary showing" required by Franks. As the court there explained,
[to] mandate an evidentiary hearing, the challenger's attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits of sworn or otherwie reliable statements of witnesses should be furnished, or their absence satisfactorily explained.
Defendants further claim that the Liberatore affidavit misrepresents the relationship of Source B to Tufaro and Marrazzo in the following two paragraphs:
38. Likewise, the use of undercover agents and informants can only provide limited information concerning PASQUA's criminal business. Thus, the undercover investigation of John Donnelly has not revealed the full scope of the narcotics relationship between Donnelly and "Carmine" Persico, nor provided information or evidence linking them to Tufaro and MARRAZZO. It is also clear that Donnelly is unwilling to involve himself to any further extent in any undercover sales in the future. Similarly, Tufaro and MARRAZZO Have indicated that they will not meet anyone whom they do not know.
39. Additionally, Source B although aware of PASQUA's narcotics business, is not in a position to obtain additional, direct information or evidence because his relationship with PASQUA [sic], and any direct approach (or introduction of an undercover agent) would be considered very suspicious. Even if successful, however, such an approach would be unlikely to reveal the full scope of PASQUA's narcotics business, including his relationship with Tufaro, MARRAZZO and others, since Tufaro and MARRAZZO would most likely refuse to deal directly with anyone except PASQUA.
In substance, defendants insist that we must infer from these paragraphs that Source B lacks access to defendants Tufaro and Marrazzo, while both of these defendants have asserted in their affidavits in support of his motion that they in fact knew Mulligan well and saw him fairly often. However, we merely find these paragraphs to be obscure, and not false, on this issue. We find no substantial preliminary showing as to defendants' allegation of misrepresentation, especially in light of the fact that neither Tufaro nor Marrazzo challenges Liberatore's ultimate conclusion that Source B could not obtain direct information or evidence of the defendants' narcotics activity.
Furthermore, even were we to find that a substantial preliminary showing had been made as to the existence of a misrepresentation regarding Source B's relationship to Tufaro and Marrazzo, such a misrepresentation would not warrant a Frank hearing, since such a hearing is appropriate only "if the allegedly false statement is necessary to the finding of probable cause." Franks, supra, at 156; see United States v. De Poli (2d Cir. 1980) 628 F.2d 779, 785. The facts allegedly misrepresented here have no bearing on our finding of probable cause, but are relevant only to our consideration, discussed below, of whether the Government exhausted all alternative investigative means before requesting permission to conduct electronic surveillance.
We further reject defendants' contention that any misrepresentation as to this issue "proves" that Liberatore, and not Source B, is responsible for any other alleged misrepresentations in the affidavit. "The deliberate falsity or reckless disregard whose impeachment is permitted [in a Franks hearing] is only that of the affiant, not of any nongovernmental informant." Franks, supra, 438 U.S. at 171. Defendants' attempt at bootstrapping, for which they have presented more convoluted conjecture than evidence, does not make their contention any less self-serving, nor does it fill the gap in the proof of a material omission or misstatement.
Finally, defendants contend that since the Government did not use Source B to obtain consensual recordings of his discussions with Pasqua, Jr., or to arrange a narcotics purchase, it therefore must have misrepresented the closeness of Source B's relationship to Pasqua, Jr. This elastic inference stretches beyond the reach of the evidence. Nothing in the record supports defendants' supposition, and Special Agent Liberatore's affidavit of June 13, 1983 at P3 definitively lays it to ...