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April 19, 1990


The opinion of the court was delivered by: Leisure, District Judge:


Defendant Giuseppe Gambino has filed a motion to suppress evidence in the form of conversations recorded by the federal government using electronic eavesdropping devices. Gambino is joined in his motion by all other defendants before the Court. Gambino claims that the government has violated Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq. ("Title III"), and the fourth amendment to the U.S. Constitution. Gambino argues that the conversations recorded by the government should be suppressed due to these statutory and constitutional violations. Defendants LoBuglio, Inzerillo, Cipriano, Guarnera, and Candela have filed motions to suppress evidence as well, based on Title III and the fourth amendment to the U.S. Constitution (the "fourth amendment").


On December 14, 1989, the grand jury returned the sixth superseding indictment (the "indictment") against the defendants in this case.*fn1 The evidence presented to the grand jury was the result of a long-term investigation by the federal government into an international organization which has come to be known variously as "the mafia" or "la cosa nostra." According to the indictment filed in this case, this organization is responsible for the importation and distribution of large quantities of narcotics in violation of federal law. To supplement its income from the narcotics trade, the organization also allegedly participates in gambling, loansharking, and extortion. The indictment charges that murder and other acts of violence are carried out by members of the organization to facilitate its operations.

As part of its investigation into this alleged criminal organization, the government petitioned the Honorable Mark A. Costantino, United States District Judge for the Eastern District of New York, for an order pursuant to 18 U.S.C. § 2518 authorizing the electronic interception of oral communications at the Caffe Giardino, an alleged headquarters for the conspiracy's leadership. On March 9, 1988, two government lawyers*fn2 filed an application with Judge Costantino supported by a 93-page affidavit sworn to by John G. Nemec, Jr., a Special Agent of the Federal Bureau of Investigation ("FBI" or "F.B.I.") who was closely involved in the investigation. (G.Ex. 1 and 2).*fn3 Based on the application and the supporting affidavit, Judge Costantino issued an order dated March 9 (the "March 9 order") which stated that probable cause had been established to believe, inter alia, that Giuseppe Gambino, Lorenzo Mannino, and others were engaging in illegal narcotics transactions, that interception of oral communications at the Caffe Giardino would reveal evidence of these crimes, and that normal investigative techniques would be unlikely to succeed if attempted. (G.Ex. 3). The March 9 order also authorized Special Agents of the F.B.I. to enter the Caffe Giardino covertly and surreptitiously to plant the eavesdropping devices. (G.Ex. 3, at 5).

As required by Title III, the government applied for extensions of the March 9 order every thirty days through mid-November 1988. Each extension application was supported by the affidavit of Special Agent Nemec, who supplemented his initial sworn statements with evidence gained from the electronic eavesdropping. Each application was granted by Judge Costantino. In the extension order dated June 16, 1988, Judge Costantino stated that probable cause had been established to believe that Giuseppe Gambino and others were engaged in extortion in violation of 18 U.S.C. § 892, 893, 894, and 371. (G.Ex. 12, at 2-3). In the extension order dated November 18, 1988, Judge Costantino added that probable cause had been established to believe that Gambino, Francesco Inzerillo, Lorenzo Mannino, Matteo Romano, Giuseppe D'Amico, and others were managing an illegal gambling enterprise in violation of 18 U.S.C. § 1955. (G.Ex. 27, at 2-3). On December 1, 1988, the defendants were arrested, and no further extensions of the electronic eavesdropping order were sought.



A. Installation of the Caffe Giardino Bugs

Gambino alleges that the participation of government confidential informant William Kane in the installation of the Caffe Giardino bugs was unauthorized and illegal, and that therefore the fruits of those bugs — the hundreds of hours of recorded conversations — should be suppressed. Gambino claims that Kane's entries into the Caffe, and his placement and maintenance of the surveillance devices, violated Title III, the fourth amendment, and the explicit requirements of Judge Costantino's March 9 order. Each of these arguments will be considered in turn.

Gambino relies on a series of five articles written in a New Jersey newspaper, the Courier-Post, for factual information. (G.Ex. 57).*fn4 Gambino points to quotations in the articles attributed to Kane stating that Kane assisted two FBI technicians in entering the Caffe Giardino as early as September 1987 to install bugs, several months before the government applied to Judge Costantino for an authorization order pursuant to Title III. The articles also report that Kane entered the Caffe Giardino alone on several occasions to activate or repair listening devices. Gambino claims that these alleged improprieties mandate suppression of the tapes.

The Court requested that the government produce Kane for live testimony concerning, inter alia, his activities in installing, activating, maintaining, or replacing electronic eavesdropping devices inside the Caffe Giardino. The Court's factual inquiry focused on whether Kane's role in the surveillance process in any way violated the requirements of Title III or the fourth amendment.

Kane testified that on multiple occasions he had activated and effected minor repairs on electronic surveillance equipment inside the Caffe Giardino under the supervision of FBI technicians, but not in the presence of government agents. (Tr. 22-24, 26).*fn5 Kane also testified that he had replaced entire units which were malfunctioning. (Tr. 24-25). Kane stated that he was in general unfamiliar with the use of surveillance devices, had followed the instructions of FBI technicians closely, and had not taken part in any of the actual interceptions of conversations inside the Caffe Giardino. (Tr. 24, 27-28). The question for the Court is whether any of Kane's actions violate Title III or the fourth amendment.

1.  Statutory Argument

Gambino argues that certain provisions of Title III indicate that only the federal government, or those acting under contract with or supervision of the government, may be authorized to intercept electronically oral communications. See 18 U.S.C. § 2516(1), 2518(5).*fn6 Gambino's contentions based on these provisions in Title III are contradicted by the definition of "interception" provided by Congress in the context of Title III. "Interception," as defined at 18 U.S.C. § 2510(4), "means the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device." See United States v. New York Telephone Co., 434 U.S. 159, 166-67, 98 S.Ct. 364, 369-70, 54 L.Ed.2d 376 (1978) (in holding that pen registers are not "interceptions" under Title III, the Court stressed that an "interception" must relate to an "aural acquisition" of the "contents" of the communications); United States v. Turk, 526 F.2d 654, 657-58 (5th Cir.), cert. denied, 429 U.S. 823, 97 S.Ct. 74, 50 L.Ed.2d 84 (1976). The provisions of Title III cited by Gambino are properly read as only relating to the actual interception of the oral communications, and are not relevant to how the listening devices are installed.*fn7

Gambino argues in response that Title III is a broad-based attempt by Congress to regulate all aspects of electronic surveillance to insure that the privacy interests of the U.S. citizenry are protected. See Dalia v. United States, 441 U.S. 238, 249-54, 99 S.Ct. 1682, 1689-92, 60 L.Ed.2d 177 (1979); United States v. Villegas, 899 F.2d 1324 (2d Cir. 1990).*fn8 Gambino claims that both the actual interception of oral communications and the installation of listening devices should be considered as part of a unified process culminating in the actual electronic interception. Gambino indicates provisions in Title III which regulate not just the "`interception' (as defined in 18 U.S.C. § 2510(4)) itself, but the entire process effectuating such interception." Reply Memorandum of Law of Giuseppe Gambino, at 6. Gambino points to § 2512 (regulating the manufacture, possession and distribution of eavesdropping devices) and § 2518(4) (allowing the court to order technicians, landlords and custodians to assist the government in effecting the interception, such as by giving technical assistance or providing facilities and information).

While the Court accepts Gambino's contentions that Title III is concerned with the entire process of electronic surveillance, and that the installation of bugs and the actual interception of conversations are closely intertwined, nothing that Gambino has brought to the Court's attention challenges the government's position that "interception," as defined in § 2510(4) and employed in §§ 2516(1) and 2518(5), does not include the installation of listening devices. For this reason, nothing in the text of Title III would prohibit Kane from participating, either alone or with government agents, in the installation of the Caffe Giardino bugs. As will be discussed below, the Court believes that it is the fourth amendment rather than Title III which is most relevant to Gambino's claims.

2.  Constitutional Argument

Gambino argues that Kane's participation in the entry of the Caffe Giardino and the placement and maintenance of the bugs violated the fourth amendment to the U.S. Constitution.*fn9 As Kane was acting as an "`agent of the government or with the participation or knowledge of any governmental official,'" his actions may be challenged on fourth amendment grounds. United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984) (quoting Walter v. United States, 447 U.S. 649, 662, 100 S.Ct. 2395, 2404, 65 L.Ed.2d 410 (1980) (Blackmun, J., dissenting)); see also Coolidge v. New Hampshire, 403 U.S. 443, 487, 91 S.Ct. 2022, 2048, 29 L.Ed.2d 564 (1971).*fn10 If Kane's activities are found to be violative of the fourth amendment, then the Court must suppress the fruits of the electronic surveillance, unless an exception to the exclusionary rule applies.

The March 9 order of Judge Costantino authorizes Special Agents of the FBI to enter covertly the Caffe to install the bugs. The relevant portion of the March 9 order states that:

  Special Agents of the FBI are hereby authorized
  to effect surreptitious entries into the subject
  premises, covertly and by breaking and entering,
  for the purpose of installing, maintaining and
  removing any electronic surveillance equipment to
  be used in accomplishing the interception of oral
  communications. . . .

(G.Ex. 3, at 5). This passage is the equivalent of a search warrant in the permission it grants federal agents to enter private premises. Gambino argues that the above-quoted language is intended to allow only federal agents to enter the Caffe and to install the eavesdropping devices. Gambino claims that Kane's involvement in either of these activities is in contravention to Judge Costantino's explicit order and the fourth amendment.

There is no provision in Judge Costantino's order, however, which deals explicitly with the actual installation of eavesdropping devices inside the Caffe Giardino, and who is authorized to do so. (See G.Ex. 3). The Court interprets the above-quoted provision of the March 9 order as only relating to entry of the Caffe, not as requiring that only federal agents carry out the installation. As will be discussed further below, the Court does not believe that installation or maintenance of devices are tasks exclusively relegated to federal agents by Title III. As long as the interception has been authorized pursuant to Title III, and any person entering private property for the purpose of installing surveillance devices is authorized to enter the property, either by warrant or otherwise, the Court does not perceive further constitutional or statutory requirements relating to the actual installation of the devices.

Judge Costantino's March 9 order is the equivalent of a warrant authorizing the electronic surveillance of the Caffe Giardino, and should be read in light of the guidelines for the execution of federal search warrants. Section 3105 of Title 18, entitled "Persons authorized to serve search warrants," provides that:

  A search warrant may in all cases be served by
  any of the officers mentioned in its direction or
  by an officer authorized by law to serve such a
  warrant, but by no other person, except in aid of
  the officer on his requiring it, he being present
  and acting in its execution.

It is clear that confidential informants cannot on their own execute federal search warrants, but may assist in the execution of warrants if in the presence of an authorized federal agent. See United States v. Barnes, 604 F.2d 121, 152 n. 16 (2d Cir. 1979), cert. denied, 446 U.S. 907, 100 S.Ct. 1833, 64 L.Ed.2d 260 (1980) ("An informant, whether paid or not, is simply not a Government `agent' within the meaning of search and seizure law."). The Court considers Kane in an intermediate status, acting as an instrument of the government for fourth amendment purposes, but not rising to the level of a federal agent for the purposes of executing search warrants.

An individual who exerts common authority over a certain premises may consent to the entry of government agents and permit those agents to search the premises. United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 993, 39 L.Ed.2d 242 (1971); United States v. Trzaska, 859 F.2d 1118, 1120 (2d Cir. 1988), cert. denied, ___ U.S. ___, 110 S.Ct. 123, 107 L.Ed.2d 84 (1989); United States v. Buettner-Janusch, 646 F.2d 759, 764 (2d Cir.), cert. denied, 454 U.S. 830, 102 S.Ct. 126, 70 L.Ed.2d 107 (1981). Courts are in agreement that confidential informants and undercover agents, whose identity is unknown by the person exercising authority, may be granted consent to enter a premises. See United States v. White, 401 U.S. 745, 749, 91 S.Ct. 1122, 1124, 28 L.Ed.2d 453 (1971); Lewis v. United States, 385 U.S. 206, 211, 87 S.Ct. 424, 427, 17 L.Ed.2d 312 (1966); United States v. Santiago, 828 F.2d 866, 869 (1st Cir. 1987.), cert. denied, 485 U.S. 969, 108 S.Ct. 1244, 99 L.Ed.2d 442 (1988). The Supreme Court "has repeatedly held that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed." United States v. Miller, 425 U.S. 435, 443, 96 S.Ct. 1619, 1624, 48 L.Ed.2d 71 (1976) (citations omitted); see also United States v. Vargas, 621 F.2d 54, 56-57 (2d Cir.), cert. denied, 449 U.S. 854, 101 S.Ct. 150, 66 L.Ed.2d 68 (1980) ("Even absent a warrant, stratagem or deception used to obtain evidence is generally permissible." (citing Lewis v. United States, supra, 385 U.S. 206, 208-09, 87 S.Ct. 424, 426)).

The government argues, and the Court agrees, that Giuseppe Gambino, who at the very least exerted common authority over the Caffe Giardino, consented to Kane's presence in virtually all parts of the Caffe. Kane testified that he had been given a set of keys by either Gambino or Lorenzo Mannino to the Caffe Giardino, which included a key to the front door, to Gambino's office in the basement, and to Gambino's desk inside the office. (Tr. 17-18, 60).*fn11 Kane also testified that he was in the Caffe Giardino on a daily basis from 1986 through 1988, and used Gambino's office and desk to count and divide money gathered from his video machines. (Tr. 18, 54). The Court therefore rules that Kane's presence inside the Caffe Giardino at any time during the period in question was constitutionally proper. Though Kane for much of the time was acting as an instrument of the government, he did not need a warrant of any type to enter or to be present in the Caffe at any time of night or day.

The central inquiry remaining for the Court is whether Kane, once he is legally inside the Caffe Giardino, needs further authority to install, to maintain or to replace electronic eavesdropping devices. The parties have not presented, nor has the Court itself found, any statutory or case authority which explicitly allows or disallows a confidential informant from installing eavesdropping devices, the use of which has been authorized by a court pursuant to Title III procedures. Title III does not contain provisions which limit the individuals who can actually carry out the installation of the devices. Similarly, the fourth amendment has never been interpreted to protect property owners against the installation of eavesdropping devices by those who have been granted full permission to enter the premises.*fn12

Gambino's two constitutionally protected privacy interests at issue — in his conversations inside the Caffe, and in the sanctity of the Caffe itself against entry — have both been weighed and protected by courts of law. Judge Costantino, in carefully following the requirements of Title III, determined that the government had made a sufficient showing to justify interception by government agents of Gambino's private conversations. Judge Costantino also gave permission to federal agents to enter the Caffe covertly for the purpose of installing eavesdropping devices. Finally, this Court has found that Kane was allowed by Gambino himself to enter the Caffe at will, and to use Gambino's office for his business affairs. Gambino has not articulated a separate constitutionally protected interest which prevented Kane from installing eavesdropping devices inside the Caffe.

The Court's ruling is based on a fair balancing of the competing policy concerns of fourth amendment jurisprudence. First, as just discussed, Gambino's privacy interests are not jeopardized by the fact that Kane, rather than federal agents, at certain times installed and maintained eavesdropping devices. See Karo, supra, 468 U.S. at 712-13, 104 S.Ct. at 3301-02. Second, the Court believes that prudent law enforcement policy requires that an informant in the position of Kane be allowed to install and maintain bugs. Under the circumstances, it was more safe and effective for Kane to undertake these activities, rather than rely on multiple covert entries by federal agents into the alleged headquarters of a criminal organization, purportedly with a penchant for murder and other acts of violence in carrying out its activities. Furthermore, Kane was always closely supervised by federal agents operating in close proximity to the Caffe Giardino. (Tr. 22-24).*fn13 The Court concludes that the actions of the government and of Kane with regard to the installation and maintenance of the Caffe Giardino bugs were at all times legal.

B. Reference to Gambling Offenses in the Judicial Orders

Gambino argues that the government purposefully omitted any mention of gambling activities at the Caffe Giardino from its first eight applications for permission to conduct electronic surveillance. Only Judge Costantino's final extension order, issued November 18, 1988, states that probable cause existed to believe that illegal gambling activities were taking place at the Caffe. (G.Ex. 27, at 2-3). Gambino claims that the government's delay in seeking express permission to eavesdrop for evidence of gambling was a tactical decision to focus attention on alleged narcotics offenses, rather than less serious crimes. Gambino argues that the government delayed in bringing gambling to Judge Costantino's attention to foster the impression that references to large amounts of cash suggested involvement in the narcotics trade rather than merely gambling. Gambino also claims that Judge Costantino would not have consented to the length of the surveillance if' he had known that gambling was in all probability the only crime that was being committed. Based on the government's bad faith in not disclosing evidence of gambling until November 18, 1988, Gambino argues that any evidence of gambling recorded prior to that date should be suppressed.

Gambino argues that the government's conduct runs afoul of Title III. By allowing the government to use evidence of any crime intercepted via an authorization order specifying only certain offenses, "[t]itle III might rapidly degenerate into what Justice Clark recently termed `the electronic equivalent . . . of a "general search warrant."'" United States v. Marion, 535 F.2d 697, 701 (2d Cir. 1976) (quoting United States v. Brodson, 528 F.2d 214 (7th Cir. 1975)). Title III therefore requires that the government's omission of mention of gambling activities in its early applications were "inadvertent" and in good faith. Marion, supra, 535 F.2d at 701.*fn14

Gambino also claims that the government's delay in bringing gambling to Judge Costantino's attention violates the precise language of § 2517(5). That section provides that when federal agents conducting electronic surveillance intercept evidence of crimes other than those specified in the authorization order, the government must include reference to the additional crimes "as soon as practicable" in a subsequent application.*fn15 In United States v. Marion, supra, 535 F.2d 697, the Second Circuit suggested a broad, "common-sense" reading of this language, stating that "[i]n all events, however, approval of the serendipitous interceptions must be obtained before their contents or fruits are used, pursuant to § 2517(3), in any criminal or grand jury proceeding." Id. at 704 n. 14, 707; United States v. Levine, 690 F. Supp. 1165, 1172 (E.D.N.Y. 1988) (emphasis in original) (stating that prosecutors should be given a reasonable amount of time in which to decide whether they will at some time use the intercepted evidence of new crimes).

The First Circuit has held that a nineteen-month period between the interceptions of evidence of new crimes and the government's application for permission to use them as evidence did not violate § 2517(5). United States v. Southard, 700 F.2d 1, 30 (1st Cir.), cert. denied sub nom. Ferris v. United States, 464 U.S. 823, 104 S.Ct. 89, 78 L.Ed.2d 97 (1983). The government argued in that case that the relevance of the intercepted conversations had only become apparent upon further analysis. Id. The First Circuit noted that the defendant had not alleged any prejudice due to the delay, and that there was no evidence that the government was engaging in "subterfuge" in an effort to manipulate the proceedings and to avoid the protections afforded the public by Title III. Id. at 30-31.

The Court also rests its holding on a theory of implied authorization. The Second Circuit has held that authorization under § 2517(5) "may be inferred when a judicial officer grants a continuation of the surveillance, even though the offense was not listed in the original order, so long as he was made aware of 'material facts constituting or clearly relating to [the] other offenses' in the application for the continuance." United States v. Ardito, 782 F.2d 358, 362 (2d Cir.), cert. denied, 475 U.S. 1141, 106 S.Ct. 1792, 90 L.Ed.2d 338 (1986) (quoting United States v. Masciarelli, 558 F.2d 1064, 1067-68 (2d Cir. 1977)). Judge Costantino was made aware on at least two occasions prior to the government's November application that evidence of gambling at the Caffe Giardino was being intercepted by government investigators. (See Affidavit of Special Agent John G. Nemec, Jr., sworn to July 15, 1988 (G.Ex. 14, at 25); Affidavit of John G. Nemec, Jr., sworn to on October 14, 1988 (G.Ex. 23, at 30)). This evidence shows that Judge Costantino knew about gambling at the Caffe Giardino, and that his permission to collect evidence related to gambling may be inferred in his authorization orders ...

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