UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
January 9, 1986
UNITED STATES OF AMERICA, against GIUSEPPE VENUTI, a/k/a "Pagnotta," CALOGERO MANNINO, a/k/a "Charlie," ANTONIO BADALAMENTI, FEDERICO SPATOLA, ANDREA GAMBINO, FERDINANDO CAPASSO, ANTONIO TRINAJSTIC, a/k/a "Tony," and CARLOS TRINAJSTIC, a/k/a "Johnny," Defendants
The opinion of the court was delivered by: LEISURE
LEISURE, District Judge:
Defendants have moved to suppress the fruits of oral and electronic surveillance. For the reasons contained herein, that motion is denied.
The superseding indictment in this case, filed on July 9, 1985, named eight defendants. The first count of the indictment alleged that all eight defendants engaged in a conspiracy to distribute and possess with intent to distribute a Schedule I narcotic drug controlled substance, namely, heroin, in violation of federal law. The remaining twenty-eight counts of the indictment charged certain of the named defendants with having committed various substantive narcotics offenses.
Prior to trial, defendants moved to suppress a large number of tapes on which the voices of some of the defendants may be heard. The tapes are the fruits of oral and electronic surveillance conducted pursuant to two orders issued by Hon. Irving Ben Cooper, District Judge of this Court, on October 1, 1984 and November 8, 1984. The first order authorized thirty days' surveillance of defendant Venuti's home and telephone (the "Venuti tap"), and was extended for an additional thirty day period by order of Judge Cooper on October 31, 1984. The latter order authorized electronic surveillance of conversations that took place on a telephone located in "Mr. Ciccio's" barbershop, where defendant Mannino was employed (the "Ciccio tap").
Originally, defendants advanced four theories in support of their motions to suppress. First, they argued that the tapes should be suppressed because of the government's failure to ensure immediate sealing of the tapes at the termination of surveillance, as required by the procedures set forth in 18 U.S.C. § 2518(8)(a). Next, they argued that the tapes should be suppressed because the law enforcement personnel conducting the surveillance did not properly minimize their interceptions in accordance with the dictates of 18 U.S.C. § 2518(5). Third, they argued that the applications for the interception orders were not properly authorized by the Attorney General. Finally, they argued that the unintelligibility of some of the tapes necessitated an audibility hearing in order to determine which tapes would be rendered inadmissible.
On August 27, 1985, I issued my initial ruling on defendants' motions to suppress. See United States v. Venuti, S 84 Cr. 1002 (PKL) (August 27, 1985 Memorandum and Order). In that Order, I denied defendants' motion to suppress on minimization grounds; ruled that the motion to suppress on grounds of improper authorization had been withdrawn at defendants' own request; and denied defendants' request for a pre-trial audibility hearing. See id. at 12-18.
As to defendants' motion to suppress because of the government's failure to ensure immediate sealing of the surveillance tapes, my ruling was, of necessity, more complex and less definite than its three companion rulings. First, I ruled that, as a matter of law, 18 U.S.C. § 2518 (8)(a) requires immediate sealing at the expiration of the period for which surveillance was authorized rather than upon the cessation of actual surveillance.
Accordingly, I calculated that the Government had only delayed one week (7 days) in sealing the Venuti tapes. See August 27 Memorandum and Order at 5-7. (There is no dispute in this case that the delay in sealing the Ciccio tapes was 13 days.) Second, I considered whether the government had offered a "satisfactory explanation" for the sealing delays. This question was, and remains, of great significance in this case since, under the law of the Second Circuit, the government's failure to provide a "satisfactory explanation" for the failure to seal tapes "immediately" must result in the suppression of those tapes at trial. See United States v. Gigante, 538 F.2d 502, 507 (2d Cir. 1976). At the time of my August 27 Order, the government's explanation for the sealing delays was the "heavy workload" of Daniel Perlmutter ("Perlmutter"), the Assistant United States Attorney who had been in charge of the "Venuti" investigation for the United States Attorney's Office for the Southern District of New York. See August 27 Order and Memorandum at 7-8. Upon my initial consideration of that explanation, I concluded that defendants were entitled to a pre-trial evidentiary hearing that would examine the government's proferred justification "in some detail." Id. at 12.
The pre-trial evidentiary hearing that followed took place during all or part of five trial days. In the course of the hearing, a significant amount of evidence and testimony was introduced, much of it concerning Assistant United States Attorney Perlmutter's mental and physical condition from December 1 until December 21, 1984, the time period which this Court deemed to be of greatest relevance to the suppression hearing. This evidence and testimony clearly established that during the period in which Perlmutter's statutory obligation to seal the Venuti and Ciccio tapes arose, he was overworked, emotionally distressed, physically ill, and regularly ingesting cocaine.
On September 23, 1985, at the conclusion of the pre-trial evidentiary hearing, I denied defendants' motion to suppress in a ruling from the bench. The factual and legal bases for that ruling are set forth in detail below.
Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520, prescribes specific procedures for securing judicial authorization for the interception of wire or oral communications in criminal investigations. See United States v. Giordano, 416 U.S. 505, 507, 40 L. Ed. 2d 341, 94 S. Ct. 1820 (1974). Congress enacted Title III in order "to ensure careful judicial scrutiny of the conduct of electronic surveillance and the integrity of its fruits." United States v. Gigante, 538 F.2d 502, 503 (2d Cir. 1976).
Title III specifically requires that wiretap evidence be presented for judicial sealing "immediately" upon the expiration of the order (or the extension thereof) authorizing the surveillance. See 18 U.S.C. § 2518(8)(a). The Second Circuit has held that, in the absence of a satisfactory explanation, the government's failure to comply with the immediate sealing requirements of § 2518(8)(a) with regard to any recorded wiretap evidence must result in the exclusion of the recordings at trial. United States v. Gigante, 538 F.2d at 507.
In the instant case, defendants' motion to suppress relates to a 7-day delay in sealing the Venuti tapes, and a 13-day delay in sealing the Ciccio tapes. In neither instance can it be said that there was an "immediate" sealing within the meaning of § 2518(8)(a). See United States v. Vazquez, 605 F.2d 1269, 1278 (2d Cir. 1979), cert. denied, 444 U.S. 981, 62 L. Ed. 2d 408, 100 S. Ct. 484 (1980). Accordingly, the government must provide this Court with a "satisfactory explanation" for the sealing delays, or the Venuti and Ciccio tapes will have to be suppressed. See United States v. Gigante, 538 F.2d at 507.
Originally, in these proceedings, the government claimed that the sealing delays had been caused primarily by Perlmutter's "heavy workload." As the pre-trial evidentiary hearing progressed, however, the government broadened the scope of its initial explanation. The government now contends that the sealing delays occurred because Perlmutter was in such a distressed mental and physical condition that he had lost his "capacity to focus" on his statutory obligation to seal the Venuti and Ciccio tapes. The question squarely before me on defendants' motion to suppress is whether that refined explanation constitutes a "satisfactory explanation" within the meaning of 18 U.S.C. § 2518(8)(a).
A. The Nature of the Sealing Delays
Before proceeding any further, I wish to review certain facts and circumstances pertaining to the sealing delays at issue in this case.
1. The Venuti Tap
The Venuti tap was initiated on October 1, 1984, pursuant to an authorization order signed by Judge Cooper. As the Venuti tap continued, a set of original and "original duplicate" tapes were produced on a daily basis. At the end of each day's surveillance, the original tapes were heat-sealed in envelopes; the following day those tapes were transferred to the office of the Drug Enforcement Administration ("DEA"), where they were placed in the DEA's evidence vault. See Evidentiary Hearing Transcript ("Tr.") at 204.
On October 31, 1984, the day after Judge Cooper's initial order authorizing the Venuti tap expired, all the tapes that had been produced to that date were signed out of the DEA evidence vault by DEA Special Agent William J. Snipes ("Snipes").
See Tr. at 205. The tapes Snipes signed out were subsequently sealed by Judge Cooper on November 2, 1984.
On October 31, 1984, Judge Cooper signed an order authorizing an extension of the Venuti tap until November 30, 1984. The actual monitoring on the Venuti tap, however, was suspended on November 16, 1984 by joint decision of Snipes and Perlmutter. See Tr. at 206. After the monitoring had ceased, Snipes asked Perlmutter if it was necessary to bring the tapes to Perlmutter's office for sealing. Perlmutter told Snipes that would not be necessary, since the Venuti tapes did not have to be sealed in accordance with Title III until after Judge Cooper's extension order expired. See Tr. at 207.
Although the extension order expired on Friday, November 30, Snipes waited until Monday, December 3, 1984, to remove the rest of the Venuti tapes from the DEA evidence vault and bring them to Perlmutter's office. See Tr. at 207. Although Snipes testified that he was generally familiar with the proper procedures for monitoring and safeguarding tapes of oral and electronic surveillance, see Tr. at 203-04, he wrongly assumed that weekend time was excluded from Title III's immediate sealing mandate, see Tr. at 229. In any event, when Snipes delivered the tapes on December 3rd, he asked Perlmutter about the need to seal the tapes in compliance with Title III, see Tr. at 232. In response, Perlmutter said that he and Snipes should be more concerned with completing the affidavits and search warrants that had to be prepared prior to the arrest of the defendants in this case. See Tr. at 233. Perlmutter also told Snipes that he had checked with Judge Cooper's chambers and had been told that the Judge was out of town and thus unavailable to seal the tapes. See Tr. at 209, 233. At the pre-trial evidentiary hearing, Snipes testified that he has since learned that Judge Cooper was not out of town that week, but was in fact conducting a civil trial in his courtroom in the Southern District of New York. See Tr. at 209.
On Friday, December 7, 1984, Judge Cooper did seal the Venuti tapes in the presence of Perlmutter and Snipes.
2. The Ciccio Tap
The Ciccio Tap was authorized by order of Judge Cooper signed November 8, 1984. The order expired on Saturday, December 8, 1984. Once again, Snipes did not retrieve the tapes from the DEA vault during the weekend, but waited until Monday, December 10th to bring the Ciccio tapes to Perlmutter's office. See Tr. at 212.
On December 10th or 11th, Snipes asked Perlmutter when he would seal the Ciccio tapes. Perlmutter told Snipes that he would take care of it, but that he had other responsibilities that he thought were more important. See Tr. at 213. Later that week, responding to a direct inquiry, Perlmutter told Snipes he would take care of the tapes. See Tr. at 213-14. From December 10th until either December 18th or 19th, Snipes periodically checked to see whether the Ciccio tapes (which were lying in a corner of Perlmutter's office, see Tr. at 232) had been sealed. See Tr. at 214. On December 18th or 19th, Snipes learned that the Venuti investigation had been transferred to Assistant United States Attorney Jess Fardella ("Fardella"), and that Perlmutter was no longer responsible for the case. See Tr. at 214. Snipes then told Fardella that the tapes had not been sealed. On Friday, December 21st, the Ciccio tapes were sealed by Hon. Whitman Knapp, District Judge of this Court.
3. Supervision of Daniel Perlmutter in the United States Attorney's Office
As an Assistant United States Attorney in the Southern District of New York, Perlmutter was assigned to both the Organized Crime Drug Enforcement Task Force and to the Narcotics Unit. His participation in the Venuti investigation arose out of his involvement in the Narcotics Unit, of which he had been a member since the late summer or early fall of 1983. See Tr. at 20. His direct supervisor during the Venuti investigation was Rhea Kemble Brecher ("Brecher"), Chief of the Narcotics Unit.
Part of Brecher's responsibilities as the head of the Narcotics Unit was to review certain substantive work prepared by the attorneys under her supervision, such as factual affidavits that are submitted in order to get court authorization for wiretaps. See Tr. at 22. In the fall of 1984, it was not Brecher's policy to review an Assistant United States Attorney's compliance with Title III sealing requirements, which she regarded as a purely ministerial task that did not require supervision. See Tr. at 24. Recently, Brecher has made it her practice to ask Assistant United States Attorneys in her unit who are involved in oral or electronic surveillance whether they have satisfied the statutory sealing requirement, see Tr. at 38-39. But the Narcotics Unit has never had a "tickler" system, i.e., a system whereby each attorney receives written notification of their daily responsibilities, see Tr. at 39.
At least until the end of 1984, Brecher considered Perlmutter an excellent Assistant United States Attorney. See Tr. at 21. Brecher was generally aware, in November and December of 1984, that Perlmutter was having marital difficulties and felt overworked, see Tr. at 25, but she did not believe that these problems were affecting the quality of his work, see Tr. at 27-28. At no time in 1984 did Brecher even remotely suspect that Perlmutter was using cocaine. See Tr. at 28.
Brecher discussed Perlmutter's problems with his workload and his marriage with Bart M. Schwartz, the then Chief of the Criminal Division. With Schwartz's assent, Brecher decided to offer Perlmutter the opportunity to take a week's vacation between Christmas and New Year's. See Tr. at 77. The decision to transfer responsibility for the Venuti investigation from Perlmutter to Fardella, however, was not related to Brecher's concerns about Perlmutter's personal problems. Rather, the reassignment was based on Brecher's prior determination that she would eventually relieve Perlmutter of his duties in the Venuti investigation in the event that another case of which Perlmutter was in charge actually went to trial. See Tr. at 62; see also Tr. at 220-21.
B. The Government's Explanation for the Sealing Delays
1. Prosecutor's Workload
The government's original explanation for the sealing delays, that the prosecutor in charge was simply too overworked, is not without support in the record. During the evidentiary hearing, Brecher testified that Perlmutter had one of the heaviest workloads among the Assistant United States Attorneys in the Southern District's Narcotics Unit, see Tr. at 20, testimony which should be considered in light of the fact that the Narcotics Unit as a whole is overworked, see Tr. at 19.
In the fall of 1984, Perlmutter had primary responsibility on at least two major narcotics investigations, as well as responsibility for numerous matters of lesser stature. See Tr. at 30-31. Perlmutter's colleagues noticed that Perlmutter was working hard on a large number of cases. See, e.g., Tr. at 458-59. Brecher herself testified that in the months preceding late December, 1984, Perlmutter frequently worked six and seven days a week and often late at night. See Tr. at 20.
Although such evidence is obviously relevant to my general inquiry in this case, I do not find it dispositive on the issue of "satisfactory explanation." The difficulty in accepting Perlmutter's heavy workload as justification in and of itself for the delays in sealing the Venuti and Ciccio tapes is that the government has not presented this Court with a complete itinerary of Perlmutter's activities during the critical period of November 30 to December 19, 1984. Although Special Agent Snipes testified that Perlmutter was busily engaged in several tasks following the arrests in the Venuti investigation, see Tr. at 217-20, no witness other than Snipes was able to testify in significant detail with regard to Perlmutter's work schedule in December, 1984.
This lack of precise proof compares unfavorably with the more complete evidence relied on by the Second Circuit in United States v. Vazquez, 605 F.2d 1269 (2d Cir. 1979), cert. denied, 444 U.S. 981, 100 S. Ct. 484 (1980), a case in which the government convinced the Court that sealing delays ranging from 7 to 13 days were acceptable where the constant demands of an ongoing criminal investigation had taken up all the available time of government personnel. See 605 F.2d at 1279. In contrast, the record in this matter contains various indications that Perlmutter was not always devoting his full energies to the Venuti investigation at the time when his obligation to seal the tapes arose. Moreover, testimony that Perlmutter, on at least one occasion, told Snipes that he had more important things to be concerned about than sealing tapes, see Tr. at 213, is not helpful to the government's position herein. See United States v. Massino, 605 F. Supp. 1565, 1578 (S.D.N.Y. 1985) ("[m]ere disregard of the [sealing requirement] while pursuing other investigative efforts is not sufficient"); United States v. Ramirez, 602 F. Supp. 783, 792 (S.D.N.Y. 1985) (in determining whether there exists a satisfactory explanation for a sealing delay, the Court must "ascertain that the delay was not caused by the Government's plain and simple failure to regard sealing the tapes as a priority").
In raising the foregoing considerations, I do not intend to discredit entirely the explanation of overwork. Perlmutter's heavy workload undoubtedly contributed to the sealing delays in this case. I do find, however, that Perlmutter's workload, by itself, cannot be said to provide adequate justification for the sealing delays here at issue.
2. Prosecutor's Emotional Stress, Physical Illness and Substance Abuse
It is now clear, however, that there is more to this matter than an overworked prosecutor. In the fall of 1984, Perlmutter was besieged by personal difficulties. His marriage was steadily deteriorating, a problem that he discussed with his friends at work see, e.g., Tr. at 223, and that he believed to have been largely caused by his excessive workload at the United States Attorney's Office. His supervisor Brecher testified that in late November or early December of 1984, Perlmutter walked into Brecher's office and told her, "I just want you to know that if my marriage ends, you should feel guilty about it, because you will be responsible." Tr. at 25.
There was also considerable testimony at the pre-trial evidentiary hearing that Perlmutter was physically ill during the first three weeks of December, the time during which his duty to seal the Venuti and Ciccio tapes arose. Snipes testified that during that period Perlmutter appeared to be suffering from a chest cold, and that he had once told Snipes that he had gone to a doctor to be treated for inflamed lungs. Tr. at 222. Assistant United States Attorney Robert B. Bucknam testified that, for at least two weeks in December, 1984, Perlmutter had a "severe" cold and was exhibiting "flu-like" symptoms. Tr. at 459. Assistant United States Attorney Edward J. Little, now Deputy Chief of the Narcotics Unit, testified that during the period in question Perlmutter had lost five to ten pounds, Tr. at 445, and that Little thought Perlmutter might have had "walking pneumonia," Tr. at 443. It is a matter of record that on December 14, 1984, the day that defendants in this case were arraigned, Perlmutter appeared tired and ill, and was accompanied to court by Little. See Tr. at 48. Case Agent Snipes testified that on that same day Perlmutter looked tired, and told Snipes that his chest was bothering him. Tr. at 242.
This Court has previously held that, under the circumstances of an individual case, a prosecutor's illness may provide part of a satisfactory explanation for a sealing delay. See United States v. Aloi, 449 F. Supp. 698, 727 (S.D.N.Y. 1977); United States v. Caruso, 415 F. Supp. 847, 850 (S.D.N.Y. 1976), aff'd mem., 553 F.2d 94 (2d Cir. 1977). Defendants have sought to distinguish such authority on the grounds that the prosecutor's illness in this case was self-induced. Defendants argue that Perlmutter's physical incapacity during December, 1984 was inextricably related to his use of cocaine during the same period. By his own admissions, Perlmutter was using one-half gram of cocaine on a daily basis during December, 1984. See. Hearing Exhibits 3504B at 2; 3504H at 2.
I do not disagree that, with the advantage of hindsight, such an inference is supported by the record. But the inference that Perlmutter was sick because he was using drugs does not change the fact that he was sick, and therefore perhaps ill-equipped to deal with his statutory obligation to seal the Venuti and Ciccio tapes.
Moreover, Perlmutter's drug use itself suggests an independent explanation for the sealing delays. Perlmutter has specifically stated that he was so distracted by his cocaine use during November and December of 1984 that he often spent time contemplating, during the performance of his official duties, how he was going to obtain and consume cocaine during the evening hours. See Transcript of August 29, 1985 Interview of Daniel Perlmutter by F.B.I. Special Agent Anthony J. Nelson, Hearing Exhibit 3504H at 2. The clear inference is that Perlmutter was simply not paying attention to his duties.
Ultimately, the explanation now proferred by the government for the delays in sealing the Venuti and Ciccio tapes is not composed of a single facet, and should not be evaluated as if it were. The government does not contend that Perlmutter failed to satisfy his obligation of timely sealing just because he was overworked, or just because he was abusing cocaine. Rather, the government contends that the explanation for Perlmutter's nonfeasance lies in the astonishing amalgam of personal difficulties that plagued him in December, 1984.
The government concedes that this explanation is not at all "satisfying," but insists that it may be regarded as "satisfactory" within the law of this Circuit. See Tr. at 543.
3. The Adequacy of the Government's Explanation
In considering whether an explanation for sealing delays is satisfactory within the meaning of 18 U.S.C. 2518(8)(a), this Court should consider: first, the length of the delay; second, whether there was evidence of tampering; third, how much time was required to prepare the tapes for sealing; and fourth, whether defendants were prejudiced by the delays. United States v. McGrath, 622 F.2d 36, 42-43 (2d Cir. 1980).
An application of the McGrath factors to the instant case clearly works to the advantage of the government rather than to the defendants. Here, the sealing delays of 7 and 13 days were, in the words of the Second Circuit, "not miniscule, [but] neither were they of Gigante proportions." United States v. Vazquez, 605 F.2d at 1280 (comparing delays ranging from 7 to 13 days to the delays of 8 to 12 months at issue in Gigante). Furthermore, there was no evidence of tampering in this case and no apparent prejudice to defendants caused by the sealing delays.
In short, this case involves brief sealing delays that did not prejudice in any way the substantive rights of defendants. Quite significantly, when confronted with sealing delays of similar brevity, the Second Circuit has never chosen to suppress wiretap evidence. See United States v. McGrath, 622 F.2d at 43 (delays ranging form 3 to 8 days); United States v. Vazquez, 605 F.2d at 1279 (delays ranging from 7 to 13 days); United States v. Scafidi, 564 F.2d 633, 641 (2d Cir. 1977) (short sealing delays). But cf. United States v. Ricco, 421 F. Supp. 401, 411 (S.D.N.Y. 1976), aff'd mem., 566 F.2d 433 (2d Cir. 1977), cert. denied, 436 U.S. 926, 98 S. Ct. 2819, 56 L. Ed. 2d 768 (1978) (sealing delays of 2 weeks not excusable under criminal procedure law of New York State).
Nonetheless, the requirement that recordings of intercepted conversations be sealed and stored immediately upon the expiration of the judicial order authorizing surveillance is "an integral part" of the statutory scheme of Title III. United States v. Gigante, 538 F.2d at 505. The obvious danger in excusing even brief sealing delays is that such excusal may inadvertently send a signal to the government that it need not treat seriously its statutory obligation of timely sealing. I am convinced, however, that such a danger does not exist in this case. The delays in sealing the Venuti and Ciccio tapes did not occur because the Narcotics Unit failed to regard the sealing requirements of Title III to be of paramount importance.
Rather, it is my finding that the delays occurred because of the inability of a sick and severely troubled prosecutor to recognize his obligations under federal law.
This last finding is significant for two reasons. First, it casts doubt on whether the absence of a "tickler" system in the United States Attorney's Office (stressed by defendants throughout these proceedings) may truly be regarded as a proximate cause of the sealing delays in this matter. It is hard to imagine that Perlmutter would have been more likely to seal the Venuti and Ciccio tapes promptly had a print-out appeared on his desk reminding him of his obligation. Indeed, the record is clear that Snipes expressly reminded Perlmutter of that obligation on several occasions, to no avail.
Second, once the sealing delays in this case have been properly characterized as the direct result of Perlmutter's individual crisis, a serious question is raised as to whether the suppression of the Venuti and Ciccio tapes can serve any useful purpose. In particular, the unique facts of this case suggest that suppressing the tapes will have no deterrent effect on future government misconduct. This is an important consideration, given the observation of the Supreme Court, made in the context of the Fourth Amendment, that the use of an exclusionary rule that does not result in appreciable deterrence is unwarranted. See United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 3414, 82 L. Ed. 2d 677 (1984) (citing United States v. Janis, 428 U.S. 433, 454, 49 L. Ed. 2d 1046, 96 S. Ct. 3021 (1976)); see also United States v. Calandra, 414 U.S. 338, 348, 38 L. Ed. 2d 561, 94 S. Ct. 613 (1974) (application of the exclusionary rule is properly "restricted to those areas where its remedial objectives are thought most efficaciously served").
Although I am convinced that analyzing the utility of excluding probative evidence is an entirely proper approach, see United States v. Leon, 104 S. Ct. at 3413, my decision with regard to defendants' motion to suppress is not based on such an analysis. Rather, guided by the law of this Circuit, as most recently set forth in United States v. McGrath, supra, my sole concern is whether the government's explanation for the sealing delays in this case is "satisfactory" within the meaning of 18 U.S.C. § 2518(8)(a). My conclusion, after reviewing the unique and unprecedented facts of this case, is that the government has satisfied its statutory burden of explanation. This determination is influenced by the marked brevity of the delays, as well as the absence of indicia of government misconduct or of prejudice to the defendants. See United States v. McGrath, 622 F.2d at 42-43. Accordingly, I find that the government has offered a satisfactory explanation for the sealing delays in this case, and I will not suppress the Venuti or Ciccio tapes as evidence at trial.