United States District Court, Southern District of New York
May 21, 1991
UNITED STATES OF AMERICA
PASCHAL MCGUINNESS, DEFENDANT.
The opinion of the court was delivered by: Robert L. Carter, District Judge.
The indictment in this case charges Paschal McGuinness,
president of the District Council of New York City and
Vicinity of the United Brotherhood of Carpenters and Joiners
of America (the "Carpenters' Union") and of its Local 608,
with one count of conspiracy and four counts of substantive
offenses. Count One of the indictment charges the defendant
with conspiracy to violate Section 302 of the Taft-Hartley
Act, 29 U.S.C. § 186 (the "Act"). The Act
makes it unlawful, among other things, for an employer to give
money or other thing of value "to any representative of any of
his employees who are employed in an industry affecting
commerce," 29 U.S.C. § 186(a)(1), or "to any officer or
employee of a labor organization engaged in an industry
affecting commerce with intent to influence him in respect to
any of his actions, decisions, or duties as a representative of
employees or as such officer or employee of such labor
organization." 29 U.S.C. § 186(a)(4). The Act also makes it a
crime for any person to request, demand, receive, or accept, or
agree to request, demand, receive or accept, any such
prohibited payment from an employer. 29 U.S.C. § 186(b)(1).
Counts Two and Three of the indictment charge McGuinness
with accepting, agreeing to accept and aiding and abetting the
acceptance of payments from two particular employers, Cord
Contracting and Elgem Sales and Service, in violation of
29 U.S.C. § 186(a)(1), (b)(1) and 18 U.S.C. § 2. Counts Four and
Five charge him with accepting and agreeing to accept the same
payments as those alleged in Counts Two and Three, but as
violative of 29 U.S.C. § 186(a)(4), (b)(1) and 18 U.S.C. § 2.
See United States v. Ricciardi, 357 F.2d 91 (2d Cir.)
(indictment charging defendant with receiving payment both as
representative of employees and as officer of labor union is
proper, as these are separate offenses under the statute),
cert. denied, 384 U.S. 942, 86 S.Ct. 1464, 16 L.Ed.2d 840
By pretrial motion, McGuinness seeks an order dismissing
Counts Two through Five; striking certain of the overt acts in
Count One; and directing the government to file a bill of
particulars, to obtain all state law enforcement files
relating to the New York State investigation of him, to
furnish state court orders permitting the release of state
grand jury proceedings, and to provide material pursuant to
Rule 16, F.R.Cr.P., and pursuant to Brady v. Maryland,
373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). By separate motion,
McGuinness seeks to suppress the fruits of certain electronic
I. PRETRIAL MOTION
A. Counts Two through Five
McGuinness asserts that Counts Two through Five should all
be dismissed on the grounds that (1) they are time-barred
under the applicable five-year statute of limitations,
18 U.S.C. § 3282, (2) they allege multiple crimes within each
count, in violation of Rule 8(a), F.R.Cr.P., and (3) they fail
to give him fair notice of the charges against him, in
violation of Rule 7(c)(1), F.R.Cr.P. Underlying all three
arguments for dismissal is McGuinness's characterization of
each of Counts Two through Five as involving multiple offenses,
since multiple payments are alleged in each of these counts.
Citing United States v. Cohen, 384 F.2d 699 (2d Cir. 1967),
McGuinness asserts that each payment alleged to have been made
in violation of the Act must be charged as a separate offense.
Counts Two and Four, alleging payments from Cord
Contracting, identify the payments as having been made from
the "[l]ate 1970's up to and including December 1985," and
amounting altogether to $6,000. Counts Three and Five,
alleging payments from Elgem Sales and Service, identify the
payments as having been made from "in and about 1980 up to and
including 1986," and amounting altogether to $16,000. All of
these counts also allege, in incorporating by reference a
paragraph from the conspiracy count, that McGuinness accepted
payments from employers "to maintain the goodwill of the
[union] officials who controlled which carpenters would be
supplied to a particular employer and to discourage those
officials from sending incompetent or unskilled workers."
Indictment ¶ 9.
1. Statute of Limitations
The indictment was filed on November 29, 1990. McGuinness
contends that counts Two through Five are barred by the
applicable five-year statute of limitations because they
incorporate payments made before November 29, 1985.
From a plain reading of the indictment, it is evident that
each of Counts Two through Five charges McGuinness with a
offense, although the indictment could have been drafted more
explicitly. "A continuing offense is one which by its nature
or by its terms is a single, ongoing crime." United States v.
Castellano, 610 F. Supp. 1359, 1408 (S.D.N.Y. 1985) (Sofaer,
J.). The various payments aggregated in each of Counts Two
through Five point to a continuous course of conduct, involving
the same employer and the same underlying agreement to accept
payments in exchange for favorable treatment in the assignment
of workers. See, e.g., United States v. Tutino, 883 F.2d 1125,
1141 (2d Cir. 1989) ("acts that could be charged as separate
counts of an indictment may instead be charged in a single
count if those acts could be characterized as part of a single
continuing scheme"), cert. denied, ___ U.S. ___, 110 S.Ct.
1139, 107 L.Ed.2d 1044 (1990).
The holding in Cohen, supra, 384 F.2d at 700, does not bar
the government from proceeding against McGuinness on such
aggregated charges. In that case, the Second Circuit held that
the government is not limited to one count against the
defendant when several payments in violation of the Act have
been made pursuant to a single agreement. Nothing in Cohen
dictates that a defendant must be charged with a separate
offense for each particular alleged payment simply because he
may be so charged. In fact, aggregation of separate payments
otherwise prohibited by the Act has been held to be proper,
where, as here, there was an alleged scheme or mechanism under
which recurring bribes were made. United States v. Papia,
910 F.2d 1357, 1364-65 (7th Cir. 1990).
While each of Counts Two through Five encompasses payments
that were allegedly made outside the statute of limitations
period, each charges McGuinness with having continued to
commit a substantive offense into the limitations period. Each
of Counts Two through Five is therefore timely charged under
18 U.S.C. § 3282. See, e.g., United States v. Rastelli,
870 F.2d 822, 839 (2d Cir.), cert. denied, ___ U.S. ___, 110 S.Ct.
515, 107 L.Ed.2d 516 (1989).
Rule 8(a), F.R.Cr.P., provides for the joinder of offenses
in the same indictment, "in a separate count for each
offense." As the Court of Appeals has explained:
Important policy considerations underlie the rule
that two or more distinct crimes should not be
alleged in a single count of an indictment. If an
indictment is duplicitous, a general verdict of
guilty will not reveal whether the jury found
defendant guilty of only one crime and not the
other, or guilty of both. Moreover, a guilty
verdict on a duplicitous indictment does not
indicate whether the jury found defendant guilty
without having reached an unanimous verdict on
the commission of a particular offense. Thus, the
prohibition of duplicity is said to implicate a
defendant's rights to notice of the charge
against him, to a unanimous verdict, to
appropriate sentencing and to protection against
double jeopardy in subsequent prosecution.
United States v. Murray, 618 F.2d 892, 896 (2d Cir. 1980)
However, a single count of an indictment is not necessarily
duplicitous in violation of Rule 8(a) whenever it contains
several allegations that could have been charged as separate
offenses. United States v. Margiotta, 646 F.2d 729, 733 (2d
Cir. 1981). The doctrine of duplicity should be invoked only
when an indictment implicates the underlying policy
considerations of Rule 8(a). Id. at 732-33; Murray, supra, 618
F.2d at 896.
Counts Two through Five, assessed in view of these policy
considerations, present some danger of infringement on
McGuinness's rights. Dismissal of the counts is unwarranted,
however, because this possibility can be avoided. First,
instructions to the jury can be tailored and the jury can be
provided with a special verdict form in order to meet
McGuinness's concerns about a unanimous jury verdict. Second,
with respect to McGuinness's rights to adequate notice of the
charges against him and to protection against double jeopardy,
the government shall be required to furnish a bill of
particulars listing the approximate
date and amount of each alleged payment encompassed within
Counts Two through Five. See, e.g., United States v.
Bortnovsky, 820 F.2d 572, 574 (2d Cir. 1987) (function of bill
of particulars is to provide defendant with information
necessary for him to prepare for trial, to prevent surprise,
and to interpose a plea of double jeopardy should he be
prosecuted a second time for the same offense); see also
Castellano, supra, 610 F. Supp. at 1381. The bill of particulars
should also disclose for each such payment the name of the
person making the payment, if known to the government. The
government shall file this bill of particulars within a
reasonable time, not to exceed one week after receipt of this
Since this bill of particulars will provide McGuinness with
the requisite notice of the charges against him, the court
need not discuss McGuinness's argument for dismissal of Counts
Two through Five on Rule 7(c) grounds.
B. Overt Acts
McGuinness next argues that the court should strike certain
of the overt acts included in the conspiracy count, for
essentially the same reasons as those in support of dismissing
Counts Two through Five. Specifically, he contends that an
overt act is by definition a singular act, transaction or
event, and that overt acts (f), (g), (n), (y) and (z) must
therefore be stricken because they all allege multiple
payments, not single payments.
As overt act (f), the indictment charges that "[f]rom
December 1980 up to and including December 1982, in New York,
New York, a representative of Pomar Construction made payments
each Christmas of approximately $500 to $1000 in cash to John
O'Connor for distribution to the officers and employees of
Local 608, including the defendant, Paschal McGuinness." The
indictment charges similar sets of payments, made by different
contractors, as overt acts (g), (n), (y) and (z).
First, it is clear from the indictment that each of these
overt acts refers to a continuing offense and is therefore
properly pleaded for the same reasons that the multiple
payments referred to in Counts Two through Five were properly
aggregated. Second, there is no case law to support
McGuinness's bold assertion that multiple payments cannot be
alleged in a single overt act. Third, McGuinness's concerns
about a unanimous jury verdict may be addressed by explicit
instructions to the jury and by a special verdict form.
Finally, to the extent that McGuinness objects to these overt
acts on grounds of inadequacy of notice and lack of protection
against double jeopardy, the government shall be required to
disclose in its bill of particulars the approximate date and
amount of each alleged payment encompassed within each of
overt acts (f), (g), (n), (y) and (z), as well as the identity
of the person making the payment, if known to the government.
See Bortnovsky, supra, 820 F.2d at 574.
C. Bill of Particulars
On January 22, 1991, McGuinness requested the government to
furnish him with particulars as to: (1) the names of all
co-conspirators; (2) the approximate time at which he
allegedly entered the conspiracy; (3) the number of different
acts alleged in overt acts (b), (d), (e), (n), (y) and (z),
and brief descriptions of each; (4) the names of the Local 608
officials referred to in overt act (m); (5) in which overt
acts he allegedly received cash personally; (6) the names of
persons who allegedly gave him money other than John O'Connor,
a former business representative of Local 608; and (7) whether
he is charged in Counts Two through Five as a principal or as
an aider and abettor. The government has agreed to provide
McGuinness with a list of co-conspirators two weeks prior to
trial and has informed him that it intends to proceed against
him both as a principal and as an aider and abettor on Counts
Two through Five. See Letter of Elizabeth Glazer to Stephen E.
Kaufman and Dominic Amorosa, dated February 8, 1991, at 1. The
government has taken the view that all of the remaining
requested information is not within the proper scope of a bill
of particulars. See id.
The approximate amount and date of each payment referred to
in overt acts (b), (d) and (e), as well as the name of the
person making the payment (if known to the government), should
be provided in the government's bill of particulars, for the
same reasons that it must provide such information for
payments encompassed within Counts Two through Five and overt
acts (f), (g), (n), (y) and (z). See supra I(A)(2).
McGuinness requests that the government be ordered to
furnish the list of co-conspirators "now," rather than two
weeks prior to trial. He cites to no legal authority to
support his contention that he is "entitled" to the list
before that time. He merely offers conclusory statements that
he may have insufficient time to pursue any investigative
leads and that he may prepare to call a witness whom the
government has identified as a co-conspirator "on the eve of
As a general matter, a defendant is not entitled to a
preview of the government's evidence. See, e.g., United States
v. Torres, 901 F.2d 205, 232 (2d Cir. 1990); United States v.
Wilson, 565 F. Supp. 1416, 1438-39 (S.D.N.Y. 1983) (Weinfeld,
J.); United States v. Boneparth, 52 F.R.D. 544, 545 (S.D.N Y
1971) (MacMahon, J.); United States v. Cimino, 31 F.R.D. 277,
279-81 (S.D.N.Y. 1962) (Edelstein, J.). However, the government
has offered no good reason for withholding the list of
co-conspirators until two weeks before trial. Moreover, earlier
disclosure of these names would better ensure that the trial
will proceed smoothly and efficiently. Since the government has
not shown that revealing the names of the co-conspirators prior
to two weeks before trial will undermine its trial strategy or
endanger its witnesses, it should disclose the names of the
co-conspirators to the defendant at the time it files its bill
The remaining information sought by McGuinness is clearly
beyond the proper scope of a bill of particulars. See, e.g.,
Torres, supra, 901 F.2d at 233-34. McGuinness's motion with
respect to these particulars is therefore summarily denied.
D. State Law Enforcement Files and Court Order
Authorizing Release of Grand Jury Proceedings
This case stems from an investigation initiated by New York
State prosecutors and draws, at least in part, on a state
grand jury investigation of McGuinness. McGuinness moves for
an order directing the government to obtain documents from
state prosecutors so that the government will be in a position
to furnish him with material required by Brady, supra, and
18 U.S.C. § 3500, and to produce a copy of the court order
authorizing disclosure of the state grand jury materials. The
government has represented to the court that it has already
obtained all relevant documents from state prosecutors and that
it is willing to produce a copy of the court order. A court
order concerning these two matters is therefore unnecessary at
E. Rule 16 Material
1. Financial Records
McGuinness contends that the government must provide him
with "defendant's financial records, the financial records of
John O'Connor and the financial records of Government
witnesses," on the grounds that they are "necessarily material
to the defense within the meaning of Rule 16." Memorandum of
Law in Support of Pretrial Motion of Paschal McGuinness ("Def.
Pretrial Mem.") 11. Rule 16(a)(1)(C), F.R.Cr.P., with certain
exceptions, requires the government to permit a defendant to
inspect and copy documents "which are within the possession,
custody or control of the government, and which are material
to the preparation of the defendant's defense or are intended
for use by the government as evidence in chief at the trial,
or were obtained from or belong to the defendant."
Before the government can be required to produce evidence
under Rule 16(a)(1)(C) on the grounds that it is material to
the defense, "it is incumbent upon a defendant to make a
prima facie showing of `materiality.'" United States v.
Buckley, 586 F.2d 498, 506 (5th Cir. 1978), cert.
denied, 440 U.S. 982, 99 S.Ct. 1792, 60 L.Ed.2d 242 (1979); see
United States v. Jordan, 399 F.2d 610 (2d Cir.), cert. denied,
393 U.S. 1005, 89 S.Ct. 496, 21 L.Ed.2d 469 (1968); United
States v. Shoher, 555 F. Supp. 346, 353 (S.D.N.Y. 1983) (Haight,
J.) (quoting Buckley); United States v. Cafaro,
480 F. Supp. 511, 519 (S.D.N.Y. 1979) (Sweet, J.). Evidence is
"material" for purposes of Rule 16(a)(1)(C) if pretrial
disclosure will enable the defendant "significantly to alter
the quantum of proof in his favor." United States v. Whiteside,
810 F.2d 1306, 1308 (5th Cir. 1987), quoted with approval in
United States v. Agajanian, 852 F.2d 56, 58 (2d Cir. 1988).
McGuinness has made only a conclusory allegation that these
documents are "material" for the purposes of Rule 16(a)(1)(C).
See Def. Pretrial Mem. 11 & exh. 3. This is plainly
insufficient. See United States v. Cadet, 727 F.2d 1453, 1466
(9th Cir. 1984); United States v. Conder, 423 F.2d 904, 910
(6th Cir.), cert. denied, 400 U.S. 958, 91 S.Ct. 357, 27
L.Ed.2d 267 (1970); Shoher, supra, 555 F. Supp. at 353.
Regarding McGuinness's own financial records, the court
notes that the government is required to produce them,
regardless of materiality, if they "were obtained from or
belong to the defendant." Rule 16(a)(1)(C), F.R.Cr.P.
McGuinness's motion papers, however, do not allege that the
requested records in fact were obtained from or belong to him.
Accordingly, the court has no basis to order their production
on these grounds.
2. Grand Jury Transcript
Under Rule 16(a)(1)(A), F.R.Cr.P., the government must
furnish a defendant with "recorded testimony of the defendant
before a grand jury which relates to the offense charged." The
requirements of Rule 16(a)(1)(C) that the document must be in
the possession of the government and must be material to the
defense do not apply.
McGuinness has requested a transcript of his grand jury
testimony in the Eastern District of New York in 1979 or
thereabouts. The government does not seriously contest that
the material relates to the offenses charged, but attests to
the difficulty in finding the transcript. According to the
uncontradicted affirmation of Elizabeth Glazer submitted by
the government, the grand jury clerk for the Eastern District
manually records the names of each day's witnesses in a
ledger. Because the government does not know the date, month
or exact year of the testimony, the only way to locate the
transcript is a manual, day-by-day search of the ledgers.
McGuinness's right to the transcript does not depend on the
government's view that "the relevance of this material [is]
marginal . . . to the charges in the indictment." Government's
Memorandum of Law in Opposition to Defendant's Pretrial Motion
("Govt. Pretrial Mem.") 16. At the same time, the government
should not be compelled to expend an unreasonable amount of
effort to find a transcript whose usefulness to the defense
has not been established. If McGuinness knows or can ascertain
the approximate or exact date of the testimony, or has any
clues that would help the government ascertain that date, he
should provide that information to the government. The
government must exercise reasonable diligence to try to find
the transcript; and if the transcript is found, McGuinness
must be allowed to inspect and copy it.
McGuinness also seeks, without stating the basis for the
request, any promises or grants of immunity to McGuinness in
connection with his grand jury testimony. There is no basis
for disclosure of this information under Rule 16(a)(1)(A), and
McGuinness has not offered any reason to believe that this
information is in the control of the government and material
to the defense within the meaning of Rule 16(a)(1)(C).
F. Brady and Giglio Material
McGuinness has also moved for an order compelling the
government to produce the following information, which he
alleges he is entitled to under the rule of Brady v.
Maryland, 373 U.S. 83
, 83 S.Ct. 1194, 10 L.Ed.2d 215
1. All information, including documentary, of
things of value provided to or promised to any
2. All information, including documentary, of all
crimes and offenses committed by any Government
3. All information relating to promises made by
any law enforcement officer to any Government
4. Whether any Government witness has been or is
the subject of any civil or criminal tax
5. All information relating to defendant's
refusal to accept money or things of value from
Def. Pretrial Mem. 16 (herein "Requests 1-5").
1. Impeachment Material
Requests 1-4 are obviously not Brady material in the sense of
evidence that tends directly to exculpate the defendant, but
are useful to the defense for impeachment purposes only. But
see United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375,
3380, 87 L.Ed.2d 481 (1985) (government must disclose
impeachment material); Giglio v. United States, 405 U.S. 150,
154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972) (same). It is
well settled that the government is not required to disclose
impeachment material before the relevant witness has testified.
See United States v. Biaggi, 675 F. Supp. 790, 812 (S.D.N Y
1987) (Motley, J.); United States v. Massino, 605 F. Supp. 1565,
1581 (S.D.N.Y. 1985) (Sweet, J.), rev'd on other grounds,
784 F.2d 153 (2d Cir. 1986); United States v. Abrams,
539 F. Supp. 378, 390 (S.D.N.Y. 1982) (Stewart, J.); United States
v. Mitchell, 372 F. Supp. 1239, 1257 (S.D.N.Y.) (Gagliardi, J.),
appeal dismissed and mandamus denied sub nom. Stans v.
Gagliardi, 485 F.2d 1290 (2d Cir. 1973); see also United States
v. Nixon, 418 U.S. 683, 701, 94 S.Ct. 3090, 3104, 41 L.Ed.2d
Accordingly, with respect to Requests 1-4, the government is
not obligated to turn over the material until after the
respective witnesses have testified. The government, however,
should not withhold the material for purposes of delay or
without good reason. In the interest of efficiency of the
trial, therefore, the government should turn over the material
two weeks prior to trial unless providing the material at that
time would adversely affect its trial strategy or endanger its
witnesses. The parties should request a conference with the
court to be held on or about June 15, 1991, to discuss what
materials will or will not be supplied before trial.
2. Other Material
Request 5, however, which seeks information regarding
whether McGuinness refused any bribes, appears to seek
disclosure of evidence for purposes other than impeachment.
The refusal of bribes on specific occasions is not
admissible in evidence to prove the character of the accused.
Under Rule 405, F.R.Evid., character may not be proved by
specific instances of a person's conduct unless that character
"is an essential element of a charge, claim, or defense," Rule
405(b), F.R.Evid., although inquiry into specific instances is
permitted on cross-examination. Rule 405(a), F.R.Evid. Thus,
the material sought in Request 5 cannot be exculpatory,
see United States v. Scarpa, 897 F.2d 63, 70 (2d Cir.), cert.
denied, ___ U.S. ___, 111 S.Ct. 57, 112 L.Ed.2d 32 (1990), but
is at best impeachment material.
Moreover, Brady applies only to facts that are not already
known to the defendant. United States v. Diaz, 922 F.2d 998,
1007 (2d Cir. 1990), cert. denied, ___ U.S. ___, 111 S.Ct.
2035, 114 L.Ed.2d 119 (1991). The government need not
"facilitate the compilation of exculpatory material that, with
some industry, defense counsel could marshall on their own."
Shoher, supra, 555 F. Supp. at 352. McGuinness should know,
better than anyone, if he refused any bribes from employers, as
as the circumstances under which any such refusals occurred.
The government has represented that it has no evidence
pertaining to any such refusals. See Govt. Pretrial Mem. 17. It
is difficult to imagine what evidence, not already in
McGuinness's possession, regarding any such refusals could come
into the government's possession in the future. Thus, the
material sought in Request 5 is not Brady material.
II. MOTION TO SUPPRESS WIRE EVIDENCE
A. Factual Background
On August 12, 1985, Justice Steven Crane, of the Supreme
Court of New York for the County of New York, issued a warrant
permitting law enforcement officials to intercept oral
communications at the offices of Local 257 of the Carpenters'
Union, located at 157 East 25th Street in Manhattan. On
November 25, 1985, Justice Crane amended the warrant to
include authorization to wiretap three phone lines to the
Local 257 offices. Thirty-day extensions of the warrant were
granted on September 12, October 12, November 9, and December
11, 1985, and on January 10, 1986. McGuinness does not
challenge the validity of these orders.
On February 9, 1986, Justice Crane issued a Sixth Extended
Eavesdropping Warrant (the "sixth extension") that, among
other things, authorized a wiretap of four telephone lines at
the offices of Local 608 of the Carpenters' Union, located at
1650 Broadway, 7th floor, in Manhattan. The sixth extension
also added John F. O'Connor, an officer of Local 608, as a
target of the investigation.
Justice Crane issued a Seventh Extended Eavesdropping
Warrant (the "seventh extension") on March 11, 1986, an Eighth
Extended Eavesdropping Warrant (the "eighth extension") on
April 9, 1986, and a Ninth Extended Eavesdropping Warrant (the
"ninth extension") on May 10, 1986. The seventh extension
continued the authority to tap the Local 608 telephones and
added McGuinness as a target of the investigation. The eighth
extension continued the Local 608 wiretapping authority and
added authority to intercept oral communications at the Local
608 office. The ninth extension continued the Local 608
According to the government, all electronic surveillance of
the Local 257 offices had ended on March 11, 1986, the "bug"
to intercept oral communications in the Local 608 office had
been removed on May 7, 1986, and the wiretaps on the Local 608
telephones were ended on May 27, 1986.
B. Probable Cause
The extensions were based on the affidavits of Joseph J.
Coffey, a Principal Investigator with the New York State
Organized Crime Task Force. McGuinness challenges the sixth,
seventh and eighth extensions as having been issued without
probable cause on the grounds that Coffey's affidavits were
facially insufficient. Although he does not mention it in his
memorandum of law, he apparently also challenges the ninth
The interception of wire and oral communications is
regulated by 18 U.S.C. § 2510 et seq., as added by Title III
of the Omnibus Crime Control and Safe Streets Act of 1968 and
subsequently amended. In
order to issue a wiretap order, a judge must find that
(a) there is probable cause for belief that an
individual is committing, has committed, or is
about to commit a particular offense enumerated
in [18 U.S.C. § 2516*fn3];
(b) there is probable cause for belief that
particular communications concerning that offense
will be obtained through such interception;
(c) normal investigative procedures . . .
reasonably appear to be unlikely to succeed . .
(d) there is probable cause for belief that the
facilities from which . . . communications are to
be intercepted are being used, or are about to be
used, in connection with the commission of such
offense, or are leased to, listed in the name of,
or commonly used by such person.
18 U.S.C. § 2518(3). "Probable cause" to issue a wiretap order
exists when, under the totality of the circumstances, the facts
contained in the supporting affidavits are sufficient to lead a
reasonably prudent person to believe that these requisite
circumstances exist. See United States v. Rowell, 903 F.2d 899,
901-03 (2d Cir. 1990); cf. Beck v. Ohio, 379 U.S. 89, 91, 85
S.Ct. 223, 225-26, 13 L.Ed.2d 142 (1964) (probable cause for
arrest). Probable cause requires "only a probability, and not a
prima facie showing of criminal activity." United States v.
Travisano, 724 F.2d 341, 346 (2d Cir. 1983); see also Rowell,
supra, 903 F.2d at 902 (probable cause standard for wiretap
order same as for search warrant).
The court's review of the sufficiency of the affidavits is
not de novo. See Illinois v. Gates, 462 U.S. 213, 236, 103
S.Ct. 2317, 2331, 76 L.Ed.2d 527 (1983); United States v.
Gallo, 863 F.2d 185, 191 (2d Cir. 1988), cert. denied,
489 U.S. 1083, 109 S.Ct. 1539, 103 L.Ed.2d 843 (1989). The issuing
court's determination of probable cause is entitled to "great
deference" by the reviewing court. Id. Justice Crane's
successive determinations that there was probable cause must
therefore be upheld as long as he had a "substantial basis" for
concluding that a wiretap would uncover evidence of wrongdoing.
Coffey's Affidavit in support of the application for the
sixth extension ("Coffey Aff. 6th"), attached as exhibit 1 to
McGuinness's Memorandum of Law in Support of Motion to
Suppress Wire Evidence ("Def. Suppression Mem."), affords a
substantial basis for concluding that there was probable cause
for the sixth extension. It relates that, in 1982 and 1983,
O'Connor had accepted bribes from undercover officers, and
that the Local 608 telephones had been used for communications
in connection with the bribes. Coffey Aff. 6th ¶¶ 51-54. During
the negotiations between O'Connor and one of the undercover
agents, O'Connor stated several times that he needed to get
approval from his "boss." Id. ¶ 63. On one occasion O'Connor
brought the agent to speak to his "boss," whom the agent
photographically identified as McGuinness. Id.
The affidavit also presented evidence that the corrupt
activity was continuing in 1985. Specifically, it sets out a
conversation intercepted on the Local 257 wire in September of
1985, involving a contractor named Mario Marsillo and two
officials of Local 257, Attilio Bitondo and Gene Hanley,
suggesting that Marsillo had bribed O'Connor. Coffey Aff. 6th
¶ 55. Bitondo was angry with Marsillo because Marsillo was
using non-union workers on a construction job on the East Side,
within Local 257's jurisdiction. Marsillo asked to "have a cup
of coffee" — apparently a euphemism for a bribe — with
Bitondo, but Bitondo refused, saying "This here we shoulda done
two months ago had a cup of coffee." Id. ¶ 55 at 43. After
Bitondo and Hanley discussed with Marsillo the picketing at his
site because of his failure to sign the union agreement,
Marsillo said "I tried to reach, reach out * * *." Id. at 45.
Hanley replied "You reached out to the wrong people Mario."
Id. Marsillo answered, "* * * I
did reach out to the wrong people the only thing I went to
John, John O'Connor * * *. But how do you do through
[sic, `who do you go through'?] when you don't know nobody? * *
* I thought that ya know that a one delegate a knows the other
knows that. And I'll send you Mario here ya know whatever." Id.
The affidavit also details a conversation of November 7,
1985, between Bitondo and a certain Mike Sega, in which Sega
tells Bitondo that a contractor named Joe Gorrall had been
able to work without "any trouble" in Local 608's territory
without a union contract. Coffey Aff. 6th ¶¶ 64-65.*fn4 Coffey
also mentions that in a conversation of January 29, 1986,
Bitondo said that McGuinness was worried that Arthur Giangrande
would cooperate with the government against him if he was
convicted at trial. Id. ¶ 63.
To be sure, this evidence would not be sufficient to support
a conviction of the Local 608 officials for any activities in
1985 or 1986. Taken together with the evidence of corruption
in 1982 and 1983,*fn5 however, and judged in the light of
common sense and experience, the 1985 and 1986 conversations
could lead a reasonable person to infer that a wiretap of the
Local 608 telephones would probably disclose some evidence of
bribery involving O'Connor, if not McGuinness. Accordingly,
the court finds that Justice Crane had a substantial basis for
finding probable cause for the sixth extension.
The court also upholds Justice Crane's determination that
probable cause existed for adding McGuinness as a target and
extending the electronic surveillance of Local 608 in the
seventh extension. Coffey's affidavit in support of that
extension, Def. Suppression Mem. exh. 2 ("Coffey Aff. 7th"),
sets out a number of conversations intercepted by the Local
680 wiretap strongly indicating that Local 680 officials were
In reference to McGuinness, in particular, a certain Pat
Tierney told Patrick Harvey, a Local 608 business agent, "I
was with Paschal [McGuinness] on Friday * * *. We had our . .
. [interrupted by Harvey] . . . have breakfast together."
Coffey Aff. 7th ¶ 17 at 14. Harvey responded: "Listen
(stutters) you don't say that to anybody. You just uh ya know
what I mean. You know (stutters) meet somebody you don't pass .
. . you know what I mean. You can tell me. . . ." Id. Tierney
responds, "Oh I know that." Id. On the basis of Harvey's
reaction, and in view of the use of expressions like "have
breakfast" and "have a cup of coffee" elsewhere in the
intercepted conversations, it appears that the conversation was
in reference to bribery.*fn6 The affidavit also indicates that
McGuinness had regular meetings with Jim Gavin,
Secretary-Treasurer of Local 608, outside the office. Id. ¶ 20.
This evidence, together with the other evidence of bribery
at the Local 608 office uncovered in the wiretaps as presented
in the affidavit, e.g., Coffey Aff. 7th ¶¶ 7-16, 19, 21-30, and
considered against the background of the affidavit in support
of the sixth extension, afforded Justice Crane an adequate
basis to issue the seventh extension.
McGuinness contends that Coffey's affidavit in support of
the eighth extension does not sufficiently implicate him in
wrongdoing. However, the statute does not require the issuing
judge to find probable cause that every person whose
conversations will be overheard has committed a crime. The
relevant question is not whether any particular individual is
culpable, but whether the conversations sought to be monitored
are likely to contain evidence of a crime. See
18 U.S.C. § 2518(3); United States v. Shipp, 578 F. Supp. 980, 986-87
(S.D.N.Y. 1984) (Weinfeld, J.), 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); see also United
States v. Kahn, 415 U.S. 143, 152-54, 94 S.Ct. 977, 982-84, 39
L.Ed.2d 225 (1974).*fn7 On the basis of the affidavit, read in
the context of the earlier affidavits, it is clear that there
was probable cause to monitor McGuinness's telephone
McGuinness also opposes the seventh and eighth extensions,
and apparently also the ninth, on the grounds that each was
tainted by the preceding warrants. Because the preceding
warrants were issued with probable cause, the court rejects
Under the terms of Justice Crane's orders, as mandated by
18 U.S.C. § 2518(5), the surveillance was to be conducted "in a
manner designed to minimize the interception of non-relevant
and privileged conversations." "Minimization" in the context of
a wiretap only requires a reasonable effort to minimize the
interception of irrelevant calls. United States v. Manfredi,
488 F.2d 588 (2d Cir. 1973), cert. denied, 417 U.S. 936, 94
S.Ct. 2651, 41 L.Ed.2d 240 (1974). Minimization generally
involves turning off the wiretap as soon as it is determined
that a conversation is irrelevant. It is generally inapplicable
to calls of less than two minutes, "too brief a period for an
eavesdropper even with experience to identify the caller and
characterize the conversation." United States v. Capra,
501 F.2d 267, 275-76 (2d Cir. 1974) (citation omitted), cert.
denied, 420 U.S. 990, 95 S.Ct. 1424, 43 L.Ed.2d 670 (1975); see
Scott v. United States, 436 U.S. 128, 140-42, 98 S.Ct. 1717,
1724-26, 56 L.Ed.2d 168 (1978).
The affirmation of Dominic Amorosa ("Am.Aff."), McGuinness's
attorney, in support of McGuinness's motion for a hearing
regarding improper minimization, consists largely of
conclusory statements of the following form: "[T]he line
sheets of April 4, 1986, from line 541-4380, from 6:22 to
10:04 * * * indicate that investigator Mullen fielded [a]
total of 74 calls during this period of time. Out of 74 calls
42 evidently involved conversations. Of the number of calls
involving conversations, the line sheets indicate that Mullen
properly minimized a total of 4 calls." Am.Aff. ¶ 9; see also
id. ¶¶ 8, 10-20.
If McGuinness could establish that the wiretap was not
turned off when it should have been for certain specific
calls, the court would exclude evidence derived from those
particular calls. McGuinness does not, however, indicate which
of the calls he contends were "properly minimized" and which
were not. The vast majority of the non-minimized calls are
less than two minutes in length. See Government's Memorandum of
Law in Opposition to Defendant's Motion to Suppress Wire
Evidence, exh. B (Elizabeth Glazer Affirmation), ¶ 6; Am.Aff.
exhs. A-M. McGuinness does not state any reason why the court
should believe that the other non-minimized calls were
irrelevant to the investigation.
Thus, the motion is essentially directed not at any
particular calls but at the wiretap as a whole. The court will
not exclude all evidence gathered by the wiretap
on the basis of a few "fribbling excesses." United States v.
Hoffman, 832 F.2d 1299, 1307 (1st Cir. 1987). Even if some
irrelevant conversations were listened to in their entirety,
the statute is not violated if the eavesdropping officers made
a good-faith effort to achieve minimization. United States v.
Cirillo, 499 F.2d 872, 881 (2d Cir.), cert. denied,
419 U.S. 1056, 95 S.Ct. 638, 42 L.Ed.2d 653 (1974). Minimization efforts
are to be judged by a standard of "reasonableness in the
context of the entire wiretap, as opposed to a chat-by-chat
analysis." Hoffman, supra, 832 F.2d at 1308; see Scott, supra,
436 U.S. at 140, 98 S.Ct. at 1724-25. Suppression of the entire
wiretap is warranted only when, at a minimum, "a substantial
number of nonpertinent conversations ha[ve] been intercepted
unreasonably," Cirillo, supra, 499 F.2d at 880, and possibly
only in cases of pervasive disregard of the minimization
requirement. See Hoffman, supra, 832 F.2d at 1309.
The government has made a prima facie showing that it
complied with the minimization requirements. See Cirillo,
supra, 499 F.2d at 880. McGuinness has presented no evidence
that the officers unreasonably intercepted a substantial number
of nonpertinent conversations, or that they improperly failed
to minimize the monitoring of any particular nonpertinent call.
Accordingly, there is no need for a hearing on the motion to
suppress wiretap evidence on grounds of improper minimization.
See Cirillo, supra, at 880.
D. Privileged Communications
McGuinness also alleges that the government intercepted
certain calls that were protected by attorney-client
privilege. Am.Aff. ¶ 22 & exh. N. From Amorosa's affirmation,
together with the line sheets, it appears that the enumerated
calls were in fact privileged attorney-client communications.
The government does not dispute this contention anywhere in its
memorandum of law. The court is not convinced, however, that
the monitoring of the privileged conversations was unlawful,
inasmuch as the officers may not have been immediately aware
that they were listening to privileged communications.
Nonetheless, the privileged communications are excludable at
trial. See Rule 501, F.R.Evid. Accordingly, the government will
not be permitted to introduce in evidence any of the
conversations listed on the first page of exhibit N of the
In sum, (1) the government shall file a bill of particulars
within a reasonable time, not to exceed one calendar week
after receipt of this opinion, listing the approximate date
and amount of each alleged payment encompassed within Counts
Two through Five and within overt acts (b), (d), (e), (f),
(g), (n), (y) and (z) of Count One of the indictment, and the
name of the person making each such payment, if known to the
government; (2) at the same time, the government shall provide
the defendant with a list of his alleged co-conspirators; (3)
the government shall exercise reasonable diligence to try to
find the transcript of McGuinness's grand jury testimony, and
McGuinness should help in the task by giving the date of the
testimony or any clues that may help determine it; and if the
transcript is found, the government shall allow McGuinness to
inspect and copy it; and (4) the government shall not
introduce in evidence any of the conversations listed on the
first page of exhibit N of the Amorosa Affirmation.
The government shall provide impeachment material, if it
does not adversely affect the government's trial strategy or
endanger its witnesses, at least two weeks before trial.
However, if producing the material at that time would have
such adverse effect, the government may stand on its right to
produce the material only after each witness testifies. The
parties are to confer with the court circa June 15, 1991, to
discuss what materials will or will not be supplied before
In all other respects, McGuinness's pretrial motion and
motion to suppress wire evidence are summarily denied.
IT IS SO ORDERED.