The opinion of the court was delivered by: CARTER
This case charges 14 defendants in a 23-count indictment with various violations of the federal narcotics laws and defendant Vasta with several firearms infringements. The indictment charges all defendants with conspiring to distribute heroin. Defendants Philip Vasta and Oreste Abbamonte, Jr. are charged with operating a continuing criminal enterprise for the distribution of narcotics. Defendants Arnold Squitieri and Michael Paradiso are charged with aiding and abetting Abbamonte in his continuing criminal enterprise activities; and various defendants are charged with possession and distribution of narcotics. In addition, criminal forfeiture of $5.8 million in cash seized by Drug Enforcement Administration ("DEA") agents from Vasta is sought.
Defendants have filed a multitude of pretrial motions including motions to sever, dismiss, transfer to the Eastern District of New York, for bills of particulars, to suppress various intercepted conversations, post-arrest statements and seized property on the grounds that several searches were unlawful. The court of necessity has spent considerable time and effort studying the voluminous papers submitted in connection with these motions. However, many of the claims are supported only by conclusory allegations or are otherwise wholly without merit, warranting dismissal out of hand. The court deals, hereafter, only with those of defendants' various claims that require discussion. Any motion not expressly discussed is, therefore, to be considered summarily dismissed.
We start with the motions to dismiss the indictment on venue grounds. The government concedes that venue is improper in this district in respect of counts 5, 6, 9, 10, 11, 14, 15 and 17-23. The motions to dismiss those counts are granted. As to the remaining counts 1-4, 7-8, 12-13, the government contends that its proof will show the occurrence of numerous acts in this district to satisfy venue requirements.
The government charges the existence of a continuing criminal enterprise and expects to show defendants' participation in the enterprise, various overt acts in furtherance of the conspiracy charge, and various acts in this district supporting the substantive counts. venue, of course, is appropriate in this district if any part of the crime charged took place here. United States v. Panebianco, 543 F.2d 447, 455 (2d Cir. 1976), cert. denied, 429 U.S. 1103, 97 S. Ct. 1129, 51 L. Ed. 2d 553 (1977) ("Venue turns on whether any part of the crime was committed within the district, and the government need only prove venue by a preponderance of the evidence."). Where Congress has made no specific provisions for venue, proper venue is determined on the basis of "the nature of the offense and the location of the acts constituting it." United States v. Chestnut, 533 F.2d 40, 46 (2d Cir.), cert. denied, 429 U.S. 829, 50 L. Ed. 2d 93, 97 S. Ct. 88 (1976). "The constitutional standards for venue concern the locality of the substantive offense rather than the location of the offender at the time of the offense." Id. at 47.
The motions by various defendants to transfer the case to the Eastern District are patently frivolous. Such a motion has substance only where the movant shoulders the burden of establishing that the transfer serves the needs of justice and the convenience of the parties and witnesses. United States v. Aronoff, 463 F. Supp. 454, 461 (S.D.N.Y. 1978) (Cannella, J.). Obviously, these factors can not be better served by a trial being moved a distance of a mere couple of miles from this courthouse. Accordingly, motions for change of venue as to counts 1-4, 7-8 and 12-13 are denied.
Various defendants contest their joinder in this single indictment, but these claims uniformly lack substance. Rule 8(b), F.R.Cr.P. authorizes the joinder of two or more defendants in an indictment when they have "participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses." The rule has been interpreted to allow joinder where the offenses are the product of a common criminal scheme or plan. United States v. Weisman, 624 F.2d 1118, 1129 (2d Cir.), cert. denied, 449 U.S. 871, 66 L. Ed. 2d 91, 101 S. Ct. 209 (1980). The fact that all the defendants are not charged in each count of the indictment is of no moment since Rule 8(b), F.R.Civ.P. specifically permits joinder in cases where individual defendants are charged in some but not all counts as long as the offenses have a common nexus. Id.; United States v. Bernstein, 533 F.2d 775, 789 (2d Cir.), cert. denied, 429 U.S. 998, 50 L. Ed. 2d 608, 97 S. Ct. 523 (1976) ("joinder of a conspiracy count and the substantive counts arising out of the conspiracy is proper since the charge of conspiracy provides a common link and demonstrates the existence of a common plan").
Here, as in United States v. Lane, 474 U.S. 438, 106 S. Ct. 725, 88 L. Ed. 2d 814 (1986), "[t]he indictment charge[s] all the defendants with one overall count of conspiracy, making joinder under Rule 8 proper. [O]nce the Rule 8 requirements were met by the allegations in the indictment, severance thereafter is controlled entirely" by Rule 14, F.R.Cr.P., "which requires a showing of prejudice." Id. at 731. Indeed, a defendant must demonstrate far more than that severance would create a better chance of acquittal, United States v. Bagaric, 706 F.2d 42, 69 (2d Cir.), cert. denied, 464 U.S. 840, 104 S. Ct. 133, 78 L. Ed. 2d 128 (1983), but even that much has not been shown.
A party seeking to have his case severed and tried separately pursuant to Rule 14, F.R.Cr.P. must sustain an extremely heavy burden of persuasion. United States v. Cunningham, 723 F.2d 217, 230 (2d Cir. 1983), cert. denied, 466 U.S. 951, 80 L. Ed. 2d 540, 104 S. Ct. 2154 (1984). Joint trials in avoiding the necessity of separate proceedings conserve judicial, juror and witness resources, United States. v. Lyles, 593 F.2d 182, 191 (2d Cir.), cert. denied, 440 U.S. 972, 59 L. Ed. 2d 789, 99 S. Ct. 1537 (1979), and to warrant severance where joinder is appropriate a defendant must show such prejudice as to constitute a miscarriage of justice. United States v. Wilkinson, 754 F.2d 1427, 1435 (2d Cir.), cert. denied, 472 U.S. 1019, 105 S. Ct. 3482, 87 L. Ed. 2d 617 (1985); accord United States v. Cunningham, 723 F.2d 217, 230 (2d Cir. 1983), cert. denied, 466 U.S. 951, 80 L. Ed. 2d 540, 104 S. Ct. 2154 (1984). That the government's case may be weaker against the moving defendants than against other defendants or that there may be an adverse spillover effect as to less culpable defendants, as is urged, e.g., by defendants Catherine and Oreste Abbamonte, Sr., Michael Paradiso, Richard Romano and Patricia Toron, does not per se warrant severance. United States v. Panza, 750 F.2d 1141, 1149 (2d Cir. 1984). There is always the reasonable expectation that the jury will follow the court's instructions to weigh the evidence as to each defendant separately and independently. United States v. Campanale, 518 F.2d 352, 359 (9th Cir. 1975) (per curiam), cert. denied, 423 U.S. 1050, 96 S. Ct. 777, 46 L. Ed. 2d 638 (1976). Indeed, the instant indictment lends support to that expectation since the charges against each defendant are definitive enough that there is little reason to fear that a jury will be confused as to what evidence to consider in determining the guilt or innocence of each defendant. Moreover, it is not unusual in multi-defendant joint trials for the jury to find individual defendants guilty on some charges and not guilty on others or even to fail to agree on some counts while disposing of others. At any rate, severance would not solve the spillover effect and similar problems since the government would be able in separate trials to introduce the same evidence it is prepared to adduce at a joint trial.
The senior Abbamontes, the mother and father of Oreste Abbamonte, Jr., one of the principal defendants, seek a severance on the grounds that their son would provide exculpatory testimony for them at a severed trial. In United States v. Finkelstein, 526 F.2d 517, 523-525 (2d Cir. 1975), cert. denied, 425 U.S. 960, 96 S. Ct. 1742, 48 L. Ed. 2d 205 (1976), the Court of Appeals set forth the following factors for a trial judge to consider when faced with motions for severance based on claims of the exculpatory testimony of a co-defendant: (1) the sufficiency of the showing that the co-defendant would testify at a severed trial and waive his Fifth Amendment privilege; (2) the degree to which the exculpatory testimony would be cumulative; (3) the counter arguments of judicial economy; and (4) the likelihood that the testimony would be subject to substantial damaging impeachment.
Here, the Abbamontes have offered only a conclusory statement that the son would testify at their severed trial. This does not suffice. United States v. Bari, 750 F.2d 1169, 1177 (2d Cir. 1984), cert. denied, 472 U.S. 1019, 105 S. Ct. 3482, 87 L. Ed. 2d 617 (1985). There is no affidavit from the son evidencing a commitment to testify and no indication of the nature of the putative testimony which would have to be evaluated by the court to determine whether it is indeed exculpatory and if so whether it would be cumulative. Since the son has a long criminal record, including three federal narcotics convictions, and has been convicted of the crime of obstruction of justice in conspiring to murder a government witness, the likelihood of the son's testimony being successfully nullified by a scathing attack on his credibility is assured.
Finally, the claim that the familial ties of some of the defendants warrants separate trials for each family member has no merit. Accordingly, all motions for severance are denied.
The arguments that the indictment is fatally defective in charging a single rather than a series of conspiracies are premature. Whether the indictment erroneously charges a single conspiracy when in fact there are two can be determined only from the evidence adduced at trial and cannot be the subject of pretrial disposition. United States v. Persico, 621 F. Supp. 842, 857 (S.D.N.Y. 1985) (Keenan, J.). Whether there is a single or multiple conspiracies is "a question of fact for a properly instructed jury." United States v. Alessi, 638 F.2d 466, 472 (2d Cir. 1980). The proper time for such arguments is at the close of the government's case.
C. Identification of Romano
Defendant Romano challenges the validity of the procedures used to identify him as the supplier of 1/2 kilo of heroin to an undercover agent on September 6, 1985. The challenge is made on information and belief that a photograph of Romano was shown to the agent who dealt with Romano when the agent made the identification.
The government asserts that on September 6, 1985, not only the undercover agent in question, to whom Romano supplied the heroin, but a number of surveillance agents had observed Romano. At that time his true identity was not known. As a result of further investigation, the DEA concluded that Romano was the September 6th supplier. A photograph of the defendant, secured from the Federal Bureau of Investigation ("FBI"), was shown to the surveillance agents, all of whom positively identified Romano as being the person they had observed meeting with the undercover agent on September 6. That photograph was then made part of a photographic spread of six photographs, which was sent to the undercover agent, and he picked out the photograph of Romano as the party with whom he had dealt.
The identification procedures thus described were not impermissibly suggestive within the meaning of Manson v. Brathwaite, 432 U.S. 98, 53 L. Ed. 2d 140, 97 S. Ct. 2243 (1977). The undercover agent, whose identification of Romano was most critical, picked Romano's photograph from a photographic spread. The agent had ample opportunity to observe Romano, and knew he would be required to identify his heroin supplier. As a trained law enforcement officer, careful attention to Romano's characteristics was standard procedure. Nothing presented by defendant suffices to raise any question about the propriety of the procedure or the accuracy of the identification. Therefore, cause sufficient to warrant a hearing has not been shown.
D. Motions for Bills of Particulars
Defendants Angelo Meli and Abbamonte, Jr. move for a bill of particulars indicating among other things the exact dates, times and locations of any meetings or conversations constituting a conspiratorial agreement, and the time when Meli joined the conspiracy or took action to further the conspiracy. The indictment provides each defendant with definite notice of the charges against him. Defendants have been given access to all of the tapes from which the government will select those to be used at trial and the government either has already identified the tapes it plans to use at trial or will do so well in advance of the commencement of trial. Final transcripts of the tapes the government plans to use are to be supplied to defendants before trial. In the younger Abbamonte's case the government has indicated that it proposes to use evidence adduced at a recent criminal trial before Judge Edelstein to prove the charges against Abbamonte in Count One of the indictment. Defendants have been supplied with full discovery of all materials the government is required to supply.
A motion for a bill of particulars is granted where necessary to furnish a defendant with facts not manifest in the indictment in order to provide the defendant with an adequate opportunity to prepare his defense and to prevent surprise. United States v. Salazar, 485 F.2d 1272, 1278 (2d Cir. 1973), cert. denied, 415 U.S. 985, 39 L. Ed. 2d 882, 94 S. Ct. 1579 (1974). Unless necessary to afford such protection, a defendant is not entitled to have the government's evidence disclosed before trial, United States v. Gottlieb, 493 F.2d 987, 994 (2d Cir. 1974), nor is a defendant permitted to obtain a preview of the government's proof. United States v. Cimino, 31 F.R.D. 277, 279 (S.D.N.Y. 1962) (Edelstein, J.). Since defendants' motions for bills of particulars seek to achieve these prohibited objectives, the motions are denied.
E. Aiding and Abetting a Continuing Criminal Enterprise
Defendants Squitieri and Paradiso are charged in Count Four with aiding and abetting defendant Abbamonte, Jr. in the operation of the continuing criminal enterprise charged in Count Three of the indictment. In enacting 21 U.S.C. § 848, Congress was concerned with large-scale profit-making enterprises engaged in the illegal importation, manufacture and distribution of controlled substances. The language chosen to define the offense charged was carefully selected to distinguish minor enterprise "employees" from those who conceive and coordinate enterprise activities. Squitieri and Paradiso are not Abbamonte's employees, nor are they employees of the enterprise he operates. The government contends that these defendants are independent actors who helped keep Abbamonte's illegal activities in operation while he was incarcerated. Their independent activities to support Abbamonte's enterprise made them, the government argues, aiders and abettors of Abbamonte. As such, they expose themselves to liability under the statute as principals. United States v. Southa rd, 700 F.2d 1, 19 (1st Cir.), cert. denied, 464 U.S. 823, 104 S. Ct. 89, 78 L. Ed. 2d 97 (1983).
Squitieri and Paradiso argue that Congress could not have intended aiders and abettors to be subject to the same harsh penalties that a drug kingpin is subject to under § 848. While this seems clearly correct as to low level accomplices, it does not follow that aiders and abettors who are themselves independent entrepreneurs, are exempt from the reach of § 848 if they expend substantial effort in keeping the kingpin's business operative.
Defendants' position was rejected in United States v. Ambrose, 740 F.2d 505 (7th Cir. 1984), cert. denied, 472 U.S. 1017, 105 S. Ct. 3479, 87 L. Ed. 2d 614 (1985). There the court held that ten former policemen who were charged with providing protection to drug kingpin operators and their employees were aiders and abettors in violation of § 848. The court concluded that they were not kingpin employees "but the kingpin's police protectors." Id. at 508. "The effectiveness of the kingpin statute might therefore be reduced if a kingpin's police protectors ... whose efforts enabled large drug enterprises to flourish brazenly for years, could never be punished as aiders and abettors" under § 848. Id.
Although they are not corrupt law enforcement officers, the government contends that Squitieri and Paradiso enabled Abbamonte, while incarcerated, to communicate with his narcotics employees and to obtain supplies of heroin for the organization when necessary, and that Squitieri's and Paradiso's assistance was of critical importance in keeping Abbamonte's operation alive. The rationale of Ambrose therefore applies. The fact that neither defendant himself can be classified as a drug kingpin to warrant being proceeded against as a principal is irrelevant. See, e.g., Haggerty v. United States, 5 F.2d 224, 224-25 (7th Cir. 1925), where the the conviction of a federal officer for aiding and abetting the impersonation of a federal officer to defraud the government was upheld even though the defendant federal officer could not himself have been convicted of impersonating a federal officer. Whether the government's evidence suffices at trial to establish Squitieri's and Paradiso's involvement to the extent indicated must await the event. The government's assertions, however, suffice at this stage to withstand defendants' motion to dismiss Count Four's aiding and abetting allegations as to them.
F. Motions to Suppress Court-Ordered Wiretaps
The motion to suppress the evidence obtained through a court-ordered wiretap of Amen's and Squitieri's telephone is denied. The motion asserts that the order was not based on probable cause and that the government filed to minimize the interception of non-pertinent conversations. Eavesdropping warrants have a presumption of validity, United States v. Travisano, 724 F.2d 341, 345 (2d Cir. 1983), and substantial deference must be given to the prior judicial determination of probable cause. Illinois v. Gates, 462 U.S. 213, 236, 76 L. Ed. 2d 527, 103 S. Ct. 2317 (1983). The application for authorization of electronic surveillance of Amen's and Squitieri's telephones were made to Judge John Bissell of the United States District Court for the District of New Jersey. Judge Bissell granted the application on August 9, 1985, finding probable cause to believe that Squitieri, Alphonse Sisco, the younger Abbamonte, Mark DeLeonardis and Amen were committing and would continue to commit offenses including distribution and possession with intent to distribute narcotics and the attempt to do so, conspiracy to commit these offenses, and use of wire facilities to facilitate these unlawful activities.
The affidavit submitted to Judge Bissell provides adequate factual details warranting the court's finding of probable cause and issuance of the order. The affidavits indicate that undercover agents had bought heroin from DeLeonardis on three separate occasions between March and May, 1985. DeLeonardis gave the agent a beeper number to contact him, and that number was found to be subscribed to by Amen. At one of the narcotics transactions the juxtaposition of DeLeonardis and Amen while the money and heroin were passing hands provided circumstantial evidence that Amen was DeLeonardis' supplier. Moreover, the pen register and toll record analysis of the telephones of Amen, DeLeonardis and Squitieri show numerous phone calls from each of these phones to the other and some collect calls from Lewisburg which coincide directly with the narcotics transaction between the undercover agent and DeLeonardis. In addition, the government's affidavit indicated that there was a pattern of collect calls to Amen's phone from Danbury, Connecticut during Abbamonte's residence at the Danbury prison and a similar pattern of collect calls from Lewisburg penitentiary during Abbamonte's incarceration at that institution. See paragraphs 92-105 inclusive of Exhibit F (affidavit of Special Agent Douglas Marshall) to the Government's Memorandum in Opposition to Defendants' Pre-trial Motions at 58-72. These facts provided ample foundation to support a finding of probable cause, and there was no reason for Judge Bissell not to accept and act upon these factual assertions of the government agents in authorizing the wiretaps.
The minimization complaint lacks substance since the challenge is nothing more than a conclusory allegation. A detailed report was filed with Judge Bissell every seven days, and he received 15 such reports. After reviewing the surveillance logs included with the first four reports, the judge advised the agents and prosecutor that having reviewed the surveillance logs in the first four reports, it was no. longer necessary for him to see the actual surveillance logs. The judge was satisfied that those monitoring the telephone were properly complying with the court's minimization order. Whether proper minimization has occurred is based on the particular facts and circumstances of the surveillance. The standard to be applied is that of reasonableness. See Scott v. United States, 436 U.S. 128, 137-38, 56 L. Ed. 2d 168, 98 S. Ct. 1717 (1978); United States v. Manfredi, 488 F.2d 588, 600 (2d Cir. 1973), cert. denied, 417 U.S. 936, 94 S. Ct. 2651, 41 L. Ed. 2d 240 (1974). Judge Bissell was confident that the agents were proceeding properly, and defendants will have to supply more than conclusory assertions of wrongdoing to warrant further inquiry about the matter by the court.
Squitieri was given until August 8, 1986, to make his motion in respect of a challenge to the wiretap of his telephone. He now seeks to preserve his right to make such a challenge at some later date. Not having taken advantage of the opportunity to challenge the order, whatever objections he might have are deemed waived and no future challenge will be entertained.
Vasta's challenge to the wiretap authorized under New York Law is rejected. The challenge is based on the failure to name Vasta in the eavesdropping warrant. When a party is not named in an eavesdropping warrant, there is no actionable wrong absent a showing of a deliberate attempt to mislead the court or proof that the exclusion of the name affected the issuance of the warrant. People v. Watkins, 63 A.D.2d 1033, 406 N.Y.S.2d 343, 345 (2d Dep't), cert. denied, 439 U.S. 984, 99 S. Ct. 575, 58 L. Ed. 2d 656 (1978) (no proof that authorities "withheld the names of the defendants [so as not to be prevented] from intercepting arguably privileged exchanges. There is no reason to believe that the inclusion of the names of the defendants would have caused the court to reject the application for the warrant."). In one of the affidavits filed in support of the issuance of the warrant, Vasta was expressly identified, his criminal record discussed and the agent stated that calls on the tapped phone from Vasta was expected. The court therefore had notice of Vasta's identity and role when the warrant was issued. People v. Calogero, 84 A.D.2d 667, 446 N.Y.S.2d 615, 617 (4th Dep't 1981) ("we find no merit in defendant's claim that because he was not named in the warrant application, the tape of his conversation with another unnamed party should be suppressed").
The argument that the state constitution mandates suppression is without merit. People v. Gnozzo, 31 N.Y.2d 134, 335 N.Y.S.2d 257, 264-65, 286 N.E.2d 706 (1972), cert. denied, 410 U.S. 943, 93 S. Ct. 1373, 35 L. Ed. 2d 610 (1973) holds that neither the federal nor the state constitution prohibits the use of conversations seized pursuant to a valid eavesdropping warrant against persons not named in the warrant. People v. Casalini, 126 Misc. 2d 665, 483 N.Y.S.2d 899, 902-03 (S. Ct. N.Y. County. 1984) holds that art. 1 § 12 of the state constitution requires only that the application--not the warrant--identify the persons whose conversations are to be ...