The opinion of the court was delivered by: SWEET
Defendants Joseph Massino ("Massino") and Salvatore Vitale ("Vitale") have brought motions to suppress evidence obtained through electronic surveillance, to strike the indictment as insufficient as a matter of law, to obtain in camera inspection of grand jury minutes, to obtain discovery, and to obtain certain other relief. The motion to suppress the tapes for failure to seal as required is granted with respect to one of the six orders, and the motion for a bill of particulars is granted with respect to one demand. As set forth below, the remaining motions are denied.
On November 23, 1983 an indictment was filed against Dominick Napolitano, Benjamin Ruggiero, Nicholas Santora, John Cerasani, James Episcopia, and Antonio Tomasulo (81 Cr. 803). A superseding indictment was filed on March 25, 1982, S 81 Cr. 803, adding Joseph Massino, Vincent Piteo, Vincent Lopez, Anthony Rabito, and Dennis Mulligan as defendants. A bench warrant was issued for Massino on March 25, 1982, but he remained a fugitive until his surrender on July 9, 1984. A second superseding indictment, with the same defendants, was filed on July 7, 1982, SS 81 Cr. 803.
A trial against the defendants named in the second superseding indictment, other than Massino, commenced on July 28, 1982, and on August 27, 1982 a jury returned guilty verdicts against Ruggiero, Santora, Rabito and Tomasulo. The Second Circuit affirmed the convictions except with respect to Tomasulo and one count of Santora's conviction. United States v. Ruggiero, 726 F.2d 913 (2d Cir. 1984).
On October 4, 1984 the grand jury returned a third superseding indictment against Massino and added Vitale as a defendant. SSS 81 Cr. 803. This indictment and the evidence the government plans to use at trial are the targets of the motions brought by Massino and Vitale.
A. Electronic Surveillance
At trial the government intends to introduce the fruits of electronic surveillance obtained pursuant to six court orders which are referred to below as the first through sixth orders in their chronological sequence. To establish the probable cause necessary to obtain each order authorizing this electronic surveillance, 18 U.S.C. 2518(3), the government submitted an affidavit of Special Agent Donald McCormick of the FBI to the issuing judge. These affidavits alleged that Angelo Ruggiero was a member of the Gambino Family of La Cosa Nostra and that he and the other named subjects were engaged in RICO violations including extortionate credit transactions, gambling, narcotics violations, and murder. Massino and Vitale have challenged the sufficiency of the November 9, 1981 and December 29, 1981 affidavits, supporting Orders #1 and #2, and consequently have also challenged the subsequent affidavits and orders, which are derivative of these first two.
In the November 9 affidavit, McCormick alleged that Ruggiero was a member of the Gambino organized crime family, reporting directly to John Giotti, a "Capo." Along with other associates, Ruggiero and Giotti were alleged to engage in shylocking, gambling, and extortion "as part of the ongoing conduct of criminal activity by the Gambino crime family." Five confidential sources, whose knowledge was allegedly based upon the statements and admissions of Ruggiero and his associates, provided the information contained in McCormick's affidavit.
The December 29, 1981 affidavit was based upon the prior affidavit, upon additional information from four of the five confidential sources, and upon information obtained through execution of the first surveillance order. The December 29 affidavit alleged Ruggiero's continued involvement in gambling and loan-sharking activities, the use of Ruggiero's telephones at his Cedarhurst residence in connection with the commission of these activities, and Ruggiero's close association with leaders and associates in the Gambino family.
The first order authorizing electronic surveillance was signed on November 9, 1981, by the Honorable Henry Bramwell, E.D.N.Y., and authorized a wiretap on the home telephone of Angelo Ruggiero in Howard Beach, Queens. The order authorized the tap for a period of thirty days and authorized the interception of wire communications of Angelo Ruggiero, John Giotti, Eugene Giotti, Frank Guidice, and Jackie Cavallo. This tap was terminated on December 1, 1981 when Ruggiero moved to Cedarhurst, New York. The tapes of this surveillance were sealed on December 2, 1981.
A second order, signed December 29, 1981, by the Honorable Joseph McLaughlin, E.D.N.Y., authorized the interception of the wire communication of Angelo Ruggiero, John Giotti, Eugene Giotti over two telephones located at Ruggiero's new residence. Monitoring pursuant to this order terminated on January 28, and the tapes of this surveillance were sealed on March 11, 1982.
On February 4, 1982, the Honorable Henry Bramwell, E.D.N.Y., signed a third order, authorizing the surveillance permitted in Order #2 for thirty additional days. Interception began on February 4, 1982 and terminated on March 6, 1982. The tapes form this surveillance were sealed on March 11, 1982.
On April 5, 1982, the Honorable Henry Bramwell, E.D.N.Y., signed a fourth order, authorizing the interception of the telephone and oral communications of Ruggiero, John Giotti, Eugene Gioti, and John Carneglia at Ruggiero's Cedarhurst home. Telephone monitoring commenced on April 5, 1982, and oral intercepts began on April 8, 1982, after "bug" was installed in Ruggiero's residence. All surveillance terminated on May 5, 1982, and the tapes from this order were sealed on May 19, 1982.
The fourth order, as had the prior three, required minimization pursuant to 18, U.S.C. 2518(5). This fourth order also stated that:
1. No device be activated and no communication be intercepted in any of the rooms unless it has been determined that at least one of the above-named subjects is present at the Ruggiero residence.
2. Interception will be suspended immediately when it is determined through voice identification, physical surveillance, or otherwise that none of the named interceptees or any of their confidants, when identified, are participants in the oral or wire conversation unless it is determined during the portion of the oral or wire conversation already overheard that this conversation is crimin- al in nature.
3. Even if one or more of the named interceptees or their confidants, when identified, is a participant in the oral or wire conversation, monitoring will be suspended if the oral or wire conversation is not criminal in nature or otherwise related to the offense under investigation.
On May 7, 1982, the Honorable Edward R. Neaher, E.D.N.Y., signed a fifth order, authorizing the continuance of the surveillance permitted by Order #4 until June 6, 1982. It added Edward Lind and John Conroy as permissible interceptees and incorporated the three specific limitations of Order #4 quoted above. On June 18, 1982 the tapes from this order were sealed.
On June 7, 1982 the Honorable Henry Bramwell signed the sixth and final surveillance order, authorizing continued surveillance at Ruggiero's residence as limited by the three requirements of Order #4. The named interceptees were Ruggiero, Eugene Giotti, John Carneglia, Edward Lind, Michael Coiro, and Joseph Guorliano. Monitoring was conducted from June 7, 1982 until July 7, 1982, and the tapes containing the intercepted communications were sealed on July 22, 1982.
These six orders can be summarized as follows:
Date of Order Termination Date Sealed
1. 11/9/81 12/1/81 12/2/81
2. 12/29/81 1/28/82 3/11/82
3. 2/4/82 3/6/82 3/11/82
4. 4/6/82 5/5/82 5/19/82
5. 5/7/82 6/6/82 6/18/82
6. 6/7/82 7/7/82 7/22/82
Massino was overheard by telephone surveillance from November 1981 through March 1982. He was not intercepted over the "bug" in the Ruggiero residence. Vitale was heard over the Ruggiero telephone in November, 1981 and was heard through the "bug" on June 13, 1982. All of the conversations involving either Massino or Vitale were with Angelo Ruggiero.
The first of the two counts in the third superseding indictment alleges that from about 1980 to the date of the indictment Massino was a "captain" of the Bonnano family of La Cosa Nostra. It alleges that at all times relevant to the indictment Massino, Vitale, and Others, named and unnamed, were members or associates of the Bonnano family, and that they constituted an "enterprise," as defined by 18 U.S.C. § 1961(4). Further, Massino, Vitale and others, named and unnamed, unlawfully, knowingly and wilfully combined and conspired to violate 18 U.S.C. § 1962(d), by conspiring to participate in the affairs of the enterprise affecting interstate commerce through a pattern of racketeering activity.
The pattern of racketeering activity included 1) Massino's involvement, from April 1981 to the date of the indictment, in conspiracies to murder Alphonse Indelicato, Philip Giaccone, Dominick Tinchera, and Anthony Indelicato, in violation of §§ 125.25 and 105.15 of New York Penal Law; 2) Massino's and Vitale's effort, in September, 1981, willfully and knowingly to obstruct the administration of justice by endeavoring to counsel another person to avoid service of a grand jury subpoena; 3) Massino's involvement in April, 1981 in a conspiracy to rob the occupants of Galerie Des Monnaies, in violation of New York State saw; 4) Massino's involvement in or about March, 1975 in a conspiracy to convert goods and chattels worth more than $100 in interstate commerce, in violation of 18 U.S.C. § 659; 5) Massino's and Vitale's involvement, in or about May, 1975, in a conspiracy to dispose of goods in interstate commerce valued at more than $5,000, knowing those goods to have been stolen and unlawfully converted in violation of 18 U.S.C. § 2315; and 6) Massino's and Vitale's involvement, in December, 1975 in a conspiracy to steal and convert for their own use goods and chattels moving in interstate commerce worth more than $100, in violation of 18 U.S.C. § 659.
Count two alleges that Massino and Vitale, with others, named and unnamed, unlawfully, wilfully, and knowingly participated in the affairs of an enterprise which affected interstate commerce through a pattern of racketeering, in violation of 18 U.S.C. § 1962(c). The substantive crimes alleged in Count One to be the subject of the conspiracy are realleged in Count Two as violations of § 1962(c).
A. Electronic Surveillance
Massino and Vitale have challenged the finding of probable cause that preceded issuance of Orders #1 and #2, relying upon the derivative nature of the subsequent orders to suppress the fruits of the remaining surveillance. Electronic surveillance pursuant to 18 U.S.C. § 2510 et seq is permitted only after the judge issuing the surveillance order has made three specific findings of probable cause: 1) an individual committing, has committed, or is about to commit a particular offense enumerated in 18 U.S.C. ) 2516;
2) particular communications concerning that offense will be obtained through such interception; and 3) the facilities from which, or the place where, the wire or oral communications are to be intercepted are being used, or are about to be used, in connection with the commission of such offense. The government contends that the affidavits submitted by Special Agent Donald McCormick of the FBI in support of the application for interception of wire communications establish the requisite probable cause.
The standard of "probable cause" that must be met to obtain an order authorizing electronic surveillance is the same as that for issuance of a search warrant United States v. Fury, 554 F.2d 522, 530 (2d Cir.), cert. denied sub nom. Quinn v. United States, 433 U.S. 910, 53 L. Ed. 2d 1095, 97 S. Ct. 2978 (1977). In Illinois v. Gates, 462 U.S. 213, 76 L. Ed. 2d 527, 103 S. Ct. 2317 (1983), the Court abandoned the two-pronged analysis of evidence introduced to establish probable cause that had been required by Aguilar v. Texas, 378 U.S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509 (1964) and Spinelli v. United States, 393 U.S. ...