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UNITED STATES v. SANTORO

May 13, 1986

UNITED STATES OF AMERICA,
v.
SALVATORE SANTORO, PAUL VARIO, FRANK MANZO, HENRY BONO, JR., HARRY DAVIDOFF, FRANK CALISE, JOHN RUSSO, HEINO BENTHIN, PASQUALE RAUCCI, LEONE MANZO, and WILLIAM BARONE, Defendants



The opinion of the court was delivered by: MCLAUGHLIN

MEMORANDUM AND ORDER

McLAUGHLIN, District Judge

 This case centers on the activities of a group of individuals alleged to constitute an enterprise called the Lucchese Crime Family. Count One of the indictment charges ten of the eleven defendants with violating the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961(1)(B), (1)(D) and (5), by conspiring to conduct the affairs of that enterprise through a pattern of racketeering activity. In Count One the government also seeks the forfeiture of almost one million dollars pursuant to 18 U.S.C. §§ 1963(a)(1), (3).

 The remaining twenty-two counts charge various offenses, most of which involve businesses in or around John F. Kennedy ("JFK") Airport. The crimes charged include: extortion of labor peace payoffs -- bribes to ensure that union labor problems would not disrupt business -- from several freight companies; extortion involving a proposed merger of two freight companies; insider trading in the stock of one of those companies; and mail fraud in connection with the purchase of certain bonds.

 Defendants have made numerous motions. Some are addressed to the indictment itself. Others seek information or concern the conduct of the government in investigating and prosecuting this case.

 I. MANZO ELECTRONIC SURVEILLANCE

 A. Inadequacy of Other Investigative Procedures

 Defendants have raised numerous challenges to the electronic surveillance conducted by the government. The first involves two bugs placed in the home of Frank Manzo and a tap placed on Manzo's telephone. Defendants argue that the fruits of these surveillances must be suppressed because the government applications did not meet the "other investigative procedures" requirement of 18 U.S.C. § 2518, which provides, in relevant part:

 (1) Each application for an order authorizing or approving the interception of a wire or oral communication . . . shall include the following information:

 (c) a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous;

 (3) Upon such application the judge may enter an ex parte order . . . authorizing or approving interception . . . if the judge determines on the basis of facts submitted by the applicant that --

 (c) normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous;

 Defendants contend that the affidavits submitted to establish this "necessity" requirement are insufficient.

 The bug orders, which were signed by Judge Weinstein on May 3, 1983 and June 13, 1983, and by Judge Glasser on July 13, 1983, August 12, 1983 and September 14, 1983, rely primarily on the May 3, 1983 affidavit of Federal Bureau of Investigation ("FBI") Special Agent William Carden. The wiretap orders, which were signed by Judge Glasser on July 22, 1983 and by this Court on August 19, 1983 and September 19, 1983, rely on the July 23, 1983 affidavit of Special Agent Martin J. Towey.

 Defendants challenge these affidavits on the grounds that they incant ritualistic recitations of the unfeasibility of alternative investigative techniques and provide no reasons specific to this case. If affidavits such as this are sufficient, defendants argue, electronic surveillance would be virtually automatic whenever the government alleges a complicated conspiracy.

 The Second Circuit has discussed the inadequacy requirement on many occasions.

 [T]he purpose of these "other investigative techniques" requirements "is not to foreclose electronic surveillance until every other imaginable method of investigation has been unsuccessfully attempted, but simply to inform the issuing judge of the difficulties involved in the use of conventional techniques." . . . Moreover, the required showing is to "be tested in a practical and commonsense fashion." 1968 U.S.Code & Admin.News [2122,] 2190. In short, the requirement is "simply designed to assure that wiretapping is not resorted to in situations where traditional investigation techniques would suffice to expose the crime." United States v. Kahn, 415 U.S. 143, 153 n.12, 94 S. Ct. 977, 982, 39 L. Ed. 2d 225 (1974).

 United States v. Martino, 664 F.2d 860, 868 (2d Cir. 1981) (quoting United States v. Fury, 554 F.2d 522, 530 (2d Cir.) (footnote omitted), cert. denied, 433 U.S. 910, 97 S. Ct. 2978, 53 L. Ed. 2d 1095 (1977)), cert. denied, 458 U.S. 1110 (1982).

 [W]hile traditional surveillance techniques need not be exhausted first if they are "impractical" or costly and inconvenient, United States v. Robertson, 504 F.2d 289, 293 (5th Cir. 1974), cert. denied, 421 U.S. 913, 95 S. Ct. 1568, 43 L. Ed. 2d 778 (1975), nevertheless Congress -- and, we may add, the New York legislature --

 evinced the clear intent to make doubly sure that the statutory authority be used with restraint . . . . These [wiretap] procedures were not to be routinely employed as the initial step in criminal investigation. Rather, the applicant must state and the court must find that normal investigative procedures have been tried and failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous.

 United States v. Giordano, 416 U.S. 505, 515, 94 S. Ct. 1820, 1826, 40 L. Ed. 2d 341 (1974).

 United States v. Lilla, 699 F.2d 99, 102-03 (2d Cir. 1983).

 The requirement of a "full and complete statement" regarding procedures attempted or considered prior to the application for a wiretap serves both to underscore the desirability of using less intrusive procedures and to provide courts with some indication of whether any efforts were made to avoid needless invasion of privacy. Like other courts, we reject generalized and conclusory statements that other investigative procedures would prove unsuccessful.

 Id. at 104 (citations omitted). But "[n]either the New York nor the federal statute requires that any particular investigative procedures be exhausted before a wiretap may be authorized. Wiretaps are 'neither a routine initial step nor an absolute last resort.' Note, The United States Courts of Appeals: 1975-76 Term Criminal Law and Procedure, 65 Geo. L.J. 209, 247 (1976)." Id.

 "Viewing the affidavits submitted in support of the wiretap [and bug] applications in a '"common sense and realistic fashion,'" and with the deference properly accorded to the issuing judge," United States v. Ruggiero, 726 F.2d 913, 924 (2d Cir.) (citations omitted), cert. denied, 469 U.S. 831, 105 S. Ct. 118, 83 L. Ed. 2d 60 (1984), I find that the affidavits here satisfy the statutory requirements. They amply detail the wide-ranging nature of the alleged conspiracy and the reasons why traditional methods had proven and would prove to be insufficient.

 The enterprise that was being investigated allegedly centered on a major organized crime family that controlled a powerful labor union and used that relationship to engage in various illegal activities -- including extortion of labor peace payoffs -- involving several businesses operating at JFK Airport. "This was no 'small time . . . case' . . . where simple investigative techniques might have sufficed, but a far-flung conspiracy that was impenetrable except by sophisticated electronic means." United States v. Wilkinson, 754 F.2d 1427, 1434 (2d Cir.), cert. denied, 472 U.S. 1019, 105 S. Ct. 3482, 87 L. Ed. 2d 617 (1985).

 The affidavits make clear that for fear of retaliation witnesses were unwilling to testify. The same threat of violence made undercover infiltration too dangerous, and the suspicious, close-knit nature of the target group made such an approach quixotic. Physical surveillance and telephone records had proven of limited usefulness because they did not reveal the subject matter of the meetings and conversations, and thus gave little insight into the scope of the conspiracy.

 Search warrants were also unlikely to be fruitful because the crimes being investigated were not of a sort to be memorialized in written records. Finally, grand jury investigations and interviews would tip the government's hand by exposing the investigation, thus probably preventing the gathering of evidence as to the full scope of the operation. Thus, viewing the case in a "common sense and realistic fashion," U.S. v. Ruggiero, supra, 726 F.2d at 524, the inadequacy of alternative investigative techniques was amply and specifically demonstrated. See generally U.S. v. Ianniello, 621 F. Supp. 1455, 1464-66 (S.D.N.Y. 1985); U.S. v. Persico, 621 F. Supp. 842, 863-65 (S.D.N.Y. 1985).

 Defendants argue that the Court, in analyzing the adequacy of the government's showing, should discount the unwillingness of witnesses to testify. They suggest that before resorting to electronic surveillance, the government should have threatened those witnesses -- informants and employer/victims with contempt, RICO or obstruction prosecutions in order to coerce their testimony. Aside from the fact that such an approach might compromise confidential sources or expose the investigation, I do not believe Congress intended that the government be required to prosecute victims and marginal actors in a criminal enterprise before being permitted to use electronic surveillance to gather evidence against those it believes to be the main wrongdoers. The government need not show that it has exhausted every conceivable avenue of investigation. United States v. Terry, 702 F.2d 299, 310 (2d Cir.), cert. denied, 461 U.S. 931, 103 S. Ct. 2095, 77 L. Ed. 2d 304 (1983).

 Defendants next argue that even if the original affidavits adequately explained why alternative techniques were not feasible, subsequent applications failed to show a continuing need for electronic surveillance. I disagree.

 Having examined the later applications, I find that they meet the requirements of the statute. That useful evidence was gleaned from the prior interceptions did not make traditional techniques any less risky or any more likely to succeed. It is easy to engage in "Monday morning quarterbacking as to what investigative techniques the agents should have employed," but I am satisfied that the government has met its burden of providing "[a) reasoned explanation, grounded in the facts of the case, [that] 'square[s] with common sense.'" United States v. Shipp, 578 F. Supp. 980, 989 (S.D.N.Y. 1984) (quoting United States v. Lilla, 699 F.2d 99, 105 (2d Cir. 1983)), aff'd sub nom. United States v. Wilkinson, 754 F.2d 1427 (2d Cir.), cert. denied, 472 U.S. 1019, 105 S. Ct. 3482, 87 L. Ed. 2d 617 (1985).

 Finally, defendants argue that even if the affidavits are adequate on their faces, the Court should order a hearing to test the veracity of the representations contained therein. Defendants wish to question the agents about, for example, the unwillingness of witnesses to testify and the impracticality of infiltrating the alleged conspiracy.

 Defendants are not entitled to an evidentiary hearing merely because they disagree with the government's or the issuing judge's assessment of the situation described in the application or because they wish to elicit further details about the investigation. "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." Franks v. Delaware, 438 U.S. 154, 171, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978). The conclusory allegations of defendants do not constitute the "substantial preliminary showing" which must be made in order to entitle them to a hearing. Compare, e.g., United States v. Figueroa, 750 F.2d 232, 237 (2d Cir. 1984) (mere allegation that events described in affidavit did not take place is insufficient to meet "sensible threshold" required for a hearing) (quoting Franks v. Delaware, supra, 438 U.S. at 170) with United States v. Ippolito, 774 F.2d 1482, 1484 (9th Cir. 1985) (agent told witness to refuse to testify so that necessity of wiretap could be demonstrated; government "did not seriously challenge the fact of intentional deception").

 Accordingly, for the reasons stated above, I find that there has been no violation of 18 U.S.C. §§ 2518(1)(c), (3)(c) with regard to either the Manzo bugs or the Manzo wiretap.

 B. Minimization

 Defendants next seek suppression of the fruits of the electronic surveillance at the Manzo home on the ground that the agents failed to properly minimize the interception of nonpertinent conversations. Defendant Frank Manzo has standing to raise a minimization challenge to these surveillances. See United States v. Fury, 554 F.2d 522, 526 (2d Cir. 1977) (minimization claim can be raised only by one with a privacy interest in the place of surveillance), cert. denied, 436 U.S. 931, 56 L. Ed. 2d 776, 98 S. Ct. 2831 (1978).

 Defendants contend that the agents intercepting conversations through the bugs of the Manzo home engaged in "live monitoring," which is the practice of listening to conversations without recording them. Defendants also point to several allegedly improper interceptions as evidence of a general disregard of both Title III, 18 U.S.C. §§ 2510-2520, and of the terms of the court orders permitting the surveillance. They seek suppression of all fruits of the bugs (which would, they allege, include the wiretap and its fruits) or, in the alternative, a hearing to further investigate their minimization claims.

 18 U.S.C. § 2518(5) provides, in pertinent part:

 Every order and extension thereof shall contain a provision that the authorization to intercept shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter .

 In addition, the orders authorizing the bugs each contained the following provision:

 [N]o interception of oral communications shall occur during periods when it is determined that none of the subjects of this Order . . . are at the above described premises, and . . . no interception of oral communications shall take place, even when [the subjects] are at the above described premises, if the conversation is non-criminal in nature.

 "[D]etermining the adequacy of minimization measures 'requires an evaluation of the reasonableness of the actual interceptions in light of the purpose of the wiretap and the totality of the circumstances before any inquiry is made into the subjective intent of the agents conducting the surveillance.'" United States v. Ianniello, 621 F. Supp. 1455, 1469 (S.D.N.Y. 1985) (quoting Scott v. United States, 436 U.S. 128, 131, 56 L. Ed. 2d 168, 98 S. Ct. 1717 (1978)).

 Courts have isolated several factors in assessing the reasonableness of minimization efforts. For example, minimization may be more difficult, and more extensive surveillance may therefore be permitted, if: 1) the investigation focuses on a widespread conspiracy, see Scott v. United States, supra, 436 U.S. at 140; United States v. Napolitano, 552 F. Supp. 465, 476 (S.D.N.Y. 1982); 2) the nature of the conversations or the alleged crimes makes it difficult to determine pertinence, see United States v. Hinton, 543 F.2d 1002, 1012 (2d Cir.), cert. denied, 429 U.S. 980, 97 S. Ct. 493, 50 L. Ed. 2d 589 (1976); United States v. Lilla, 534 F. Supp. 1247, 1267 (N.D.N.Y. 1982), rev'd in part on other grounds, 699 F.2d 99 (2d Cir. 1983); United States v. Bynum, 360 F. Supp. 400, 410 (S.D.N.Y.), aff'd, 485 F.2d 490 (2d Cir. 1973), vacated on other grounds, 417 U.S. 903, 94 S. Ct. 2598, 41 L. Ed. 2d 209 (1974); or 3) the targets use jargon or code words or speak in a foreign language, see United States v. Hinton, supra, 543 F.2d at 1012; United States v. Lilla, supra, 534 F. Supp. at 1268; United States v. Cale, 508 F. Supp. 1038, 1041 (S.D.N.Y. 1981). In addition, the agents may have more leeway at the start of a surveillance when they are less familiar with the subjects. See United States v. Scott, supra, 436 U.S. at 141; United States v. Napolitano, supra, 552 F. Supp. at 476.

 In addition, courts have identified several measures which, if taken by the government, make a finding of compliance with § 2518(5) more likely. These include: 1) maintenance of monitoring logs, see United States v. Hinton, supra, 543 F.2d at 1012; United States v. Rizzo, 491 F.2d 215, 217 (2d Cir.), cert. denied, 416 U.S. 990, 40 L. Ed. 2d 769, 94 S. Ct. 2399 (1974); 2) judicial supervision of the progress of the surveillance, see United States v. Bynum, supra, 360 F. Supp. at 410; and 3) supervision by the prosecutor, see United States v. Rizzo, supra, 491 F.2d at 217; United States v. Bynum, supra, 360 F. Supp. at 410. The fact that no privileged conversations were recorded may also show that the agents have abided by the statute and orders. See United States v. Rizzo, supra, 491 F.2d at 217.

 Actual evidence of minimization by the monitoring agents can be gleaned by scrutinizing

 inter alia, the type of criminal enterprise being investigated; the scope of that enterprise and the number of participants, known and unknown, involved therein; the number of days for which electronic surveillance is conducted; the scope of the authorizing order; the activity [in] the [premises] being monitored; the number of [conversations]; the number of monitored [conversations]; the location of the [bugs]; the length of [conversations]; the participants in those [conversations]:, the content of [conversations] as reasonably perceived at the time of [interception]; the experience of the agents deployed for the investigation; the various pressures on the agents executing the investigation; the procedures planned and/or followed to monitor [interceptions]; the equipment employed in the surveillance; and, most of all, the supervision of the interception by the investigating agency, the supervising attorney, and by the authorizing Court.

 United States v. Bynum, supra, 360 F. Supp. at 410.

 Having reviewed the affidavits, the monitoring logs, the reports submitted to the supervising judges, and the instructions given to the agents, and having evaluated those documents in light of the principles discussed above, I conclude that the government has made a prima facie showing of compliance with both § 2518(5) and the court orders.

 First of all, several procedures designed to ensure proper minimization were established. The agents were instructed by their supervisor on the maintenance of accurate logs and by an Organized Crime Strike Force attorney on the legal requirements for minimization of irrelevant interceptions. It was made clear that there was to be no monitoring without recording and that there was to be no automatic recording. Each agent was required to read all instructions, court orders and applications, and copies of each were posted in the monitoring plant. In addition, the prosecutors personally delivered weekly progress reports to the supervising judges.

 Moreover, minimization was complicated by the nature of the surveillance. The target premises was a residence used as an office; thus, relevant conversations were not confined to particular areas or times of day. Manzo speaks heavily accented English and often conversed in Italian, and interceptions were frequently obscured by television noise or music. The enterprise being investigated involved many known and unknown parties and various criminal activities.

 These factors made it difficult to tell whether a conversation was pertinent, but it appears that the agents complied as best they could with their minimization obligations. The logs reveal that listening ceased once it was determined that the interception was irrelevant. The majority of interceptions appear to ...


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