The opinion of the court was delivered by: CONNER
Orlando Gonzalez ("Gonzalez") is one of ten defendants charged in a superseding indictment filed October 4, 1984 with conspiracy to violate federal narcotics laws. 21 U.S.C. § 826. Specifically, he and his codefendants are charged with having conspired to distribute and possess with intent to distribute cocaine. Indictment at Count I. A variety of pretrial motions were filed, but six of the ten defendants have now entered guilty pleas and the Court is presented here only with the issues raised by Gonzalez.
Each is addressed below.
I. Dismissal of the Indictment
Gonzalez asks that the Court exercise its discretion to examine the grand jury minutes and dismiss the indictment if it finds an absence of adequate evidence before the grand jury. Gonzalez offers several reasons why he suspects the grand jury lacked sufficient evidence to indict. He points to the fact that he is not named in any of the overt acts, and that his alleged role is not particularized in any way. He notes that his review of affidavits submitted by Special Agent John Dowd ("Agent Dowd") in support of electronic surveillance applications revealed only one reference to him among all the intercepted conversations mentioned by Dowd, and that Gonzalez "merely answered a telephone call and engaged in a [one-minute] telephone conversation which in no way implicates him in a conspiracy."
Getnick Aff. of June 27, 1984 at PP9, 10. he contends, finally, that because the Government expanded the scope of its electronic surveillance on several occasions as it discovered the names of individuals whose conversations it expected to intercept, but never added Gonzalez's name, the Government had no expectation of intercepting any more of his conversations as part of an ongoing conspiracy. Id. at P12. According to defendant, all of these factors suggest that inadequate evidence was presented to the grand jury.
Although this Court has discretion to examine grand jury minutes in order to determine whether adequate evidence was placed before a grand jury, see United States v. Tane, 329 F.2d 848 (2d Cir. 1964), such an examination is not lightly undertaken and will not be performed here. There is no question but that the paragraph excerpted from Agent Dowd's affidavits provides less than compelling support for a probable cause determination with respect to Gonzalez. Nonetheless, as a general rule, an indictment which is valid on its face and which was returned by a legally constituted grand jury is not subject to challenge on the ground that it is based on inadequate or incompetent evidence. See United States v. Greater Syracuse Board of Realtors, Inc., 449 F. Supp. 887, 898 (S.D.N.Y. 1978) and cases cited therein. As the Supreme Court recognized in Costello v. United States, 350 U.S. 359, 100 L. Ed. 397, 76 S. Ct. 406 (1956):
challenge on the ground that there was inadequate or incompetent evidence before the grand jury, the resulting delay would be great indeed. The result of such a rule would be that before trial on the merits a defendant could always insist on a kind of preliminary trial to determine
the competency and adequacy of the evidence before the grand jury. . . . An indictment returned by a legally constituted and unbiased grand jury . . . is enough to call for trial of the charge on the merits.
Id. at 363 (footnote omitted).
Inspection of grand jury minutes is generally reserved for situations in which a defendant claims a gross and prejudicial irregularity, or presents some other compelling and particularized need. United States v. Aloi, 449 F. Supp. 698, 738 (S.D.N.Y. 1977). Because no such need has been shown here, Gonzalez's motion is denied.
Gonzalez next seeks an order pursuant to Rule 14, F.R.Crim.P. granting him a severance from the remaining defendants and a separate trial.
He argues that the crux of the Government's case against him consists essentially of the intercepted phone conversation mentioned above, and says that his involvement is "so minimal . . . that to try him jointly with individuals allegedly involved in an extensive seven-year conspiracy to distribute large amounts of cocaine in New York City would be irredeemably prejudicial." Getnick Aff. of Dec. 13, 1984 at PP18, 20.
It is obvious from even a cursory review of Count I that Gonzalez is not a key figure in the conspiracy charged.
Nonetheless, as the Court of Appeals for the Second Circuit recently recognized, "[i]t is almost inevitable that in an unlawful scheme or conspiracy involving several defendants some will be shown to have been more culpable than others," and a defendant is not entitled to a severance simply because some evidence relates only to codefendants. United States v. Panza et al., 750 F.2d 1141, slip op. at 959 (2d Cir. 1984). A defendant seeking a severance "must shoulder the difficult burden of showing that the prejudice to him from joinder is sufficiently severe to outweigh the judicial economy that would be realized by avoiding lengthly multiple trials. Id.; see also United States v. Losada, 674 F.2d 167, 171 (2d Cir.), cert. denied, 457 U.S. 1125, 102 S. Ct. 2945, 73 L. Ed. 2d 1341 (1982). Because motions made under Rule 14 require courts to weigh the facts, circumstances and claims of prejudice of each case, the determination of whether severance is proper is addressed to the judge's discretion, and will not be reversed absent a showing of substantial prejudice. United States v. Cunningham, 723 F.2d 217, 229-30 (2d Cir. 1983), cert. denied, 466 U.S. 951, 52 U.S.L.W. 3776, 80 L. Ed. 2d 540, 104 S. Ct. 2154 (April 23, 1984).
I cannot conclude that Gonzalez will be prejudiced if he is tried with the defendants remaining in the case, and I therefore deny the severance motion. Six defendants including "kingpin" Cesar Ramirez have entered pleas of guilty, and as a result, this trial will be neither long nor complicated. Only two counts of the original twenty-three remain for trial. Two of the four defendants are police officers whose involvement apparently centers around their receipt of payments for protection services, and although Gonzalez's involvement has not been particularized, it seems unlikely that the jury will confuse the facts as they relate to the respective defendants. The other remaining defendant, Raul Cuevas, also appears to have had a relatively insignificant role which should not prove difficult for a jury to discern. Thus, there is no strong likelihood of prejudicial spillover or juror confusion due to the number of counts, the number of defendants, or the length of proceedings. Moreover, there is no reason to conclude that any potential for spillover effects cannot be eliminated by proper jury instructions.
It is apparent, in addition, that considerations of judicial economy would be ill-served by separate trials. Cesar Ramirez will be the key prosecution witness and presumably he will establish the existence of the conspiracy in which all defendants allegedly joined. Thus, separate trials would result in considerable repetition of direct testimony. It is also fair to assume, in light of the scope of Ramirez's own illegal activities, that a significant amount of trial time will be spent on impeachment. This testimony, too, would have to be repeated if Gonzalez were tried separately. None of the prejudice arguments presented by Gonzalez is sufficient to justify the burden that would be placed on the Court if the motion were granted. The motion for severance is denied.
III. Suppression of Taped Conversations
Gonzalez next requests an order compelling suppression of recorded conversations to which he was a party. He seeks this relief "for the reasons set forth in the suppression motion of defendant Cesar Ramirez." Getnick Aff. of Dec.13, 1984 at P22. Ramirez, whose own motions have now been mooted by his guilty plea, challenged the Government's use of evidence seized by means of electronic surveillance on grounds that: (1) the original application and requests for extensions were unsupported by probably cause; (2) the authorizations were not "executed as soon as practicable"; (3) the Government failed adequately to demonstrate that other investigative procedures had been tried without success; (4) the Government's agents failed to minimize the interception of communications not properly subject to interception; and (5) the Government failed to have its tapes sealed immediately.
The conversations Gonzalez seeks to suppress were recorded by means of a wiretap placed on the telephone at Ramirez's jewelry store and a "bug" installed inside the same premises. Gonzalez challenges the probable cause determinations of Judge Gerald L. Goettel, who issued the electronic surveillance authorizations in this case, on the ground that certain information relied upon by Judge Goettel was false. Specifically, Gonzalez looks to Agent Dowd's affidavit in support of the initial application, wherein Dowd reported that Edith Collado, who was Ramirez's former wife, and another individual named Jose Ortega, had each reported that Ramirez was involved in heavy volume cocaine dealing. The basis of the assertion that this information was false is an affidavit submitted in Ramirez's prior counsel, in which counsel averred that Ramirez told him of a conversation with Collado in which she denied ever having made such a statement, and another conversation in which Ortega advised Ramirez "through an intermediary" that Ortega had made a similar denial.
Ramirez contended, and thus Gonzalez now contends, that probable cause "evaporates" once the Collado and Ortega statements are excluded. Zapp Memo. In Support of Ramirez Motion to Suppress at 7. He argues that the remaining averments provide "only the scantiest indication, far short of probable cause" to believe that electronic surveillance would reveal evidence of narcotics violations. Id.
The Government responds that the unsworn allegations of defendant Ramirez cannot support a motion to suppress, and that there was "overwhelming evidence" to establish probable cause to believe Ramirez was using his business telephone and his store to conduct a large narcotics business. It asserts, moreover, that no claim for relief could be sustained under Franks v. Delaware, 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978) because, even assuming the statements of Agent Dowd were false, there is no evidence to suggest they were made "with knowledge or with reckless disregard for the truth," and no showing that the statements were material.
Gov't Memo. in Opp. to Defendants' Motions at 5-7.
It is important to note, in resolving the questions raised here, that probable cause to issue a wiretap order exists when the facts made known to the issuing magistrate are sufficient to warrant a prudent man in believing that evidence of a crime will be obtained through the use of electronic surveillance. United States v. Fury, 554 F.2d 522, 530 (2d Cir.), cert. denied, 436 U.S. 931, 56 L. Ed. 2d 776, 98 S. Ct. 2831 (1978). Moreover, the magistrate is to review the affidavit submitted in support of the application as a whole, and is to test that affidavit in a common-sense fashion. Massachusetts v. Upton, 466 U.S. 727, 104 S. Ct. 2085, 2088, 80 L. Ed. 2d 721 (1984)(per curiam). As the Government correctly adds, this Court must give substantial deference to a prior judicial determination that probable cause existed, Aguilar v. Texas, 378 U.S. 108, 111, 12 L. Ed. 2d 723, 84 S. Ct. 1509 (1964); United States v. Londono, 553 F.2d 805, 810 (2d Cir. ...