Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

U.S. v. GOTTI

July 19, 1991

UNITED STATES OF AMERICA, PLAINTIFF,
v.
JOHN GOTTI, ET AL., DEFENDANTS.



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

  MEMORANDUM AND ORDER

The defendants have moved this court for an order that would:

  1. Suppress, on a variety of grounds, the fruits
  of electronic surveillance conducted at the
  Ravenite Social Club, 247 Mulberry Street, New
  York, New York, pursuant to an order initially
  entered by a judge of the United States District
  Court for the Southern District of New York on
  September 25, 1989 ("the Ravenite tapes");
  2. Suppress, on a variety of grounds, the fruits
  of electronic surveillance conducted at the Bergen
  Hunt and Fish Club in 1985 and 1986 ("the BH & FC
  tapes");
  3. Direct that a hearing be held to determine
  whether the tape recordings of the intercepted
  conversations are audible;
  4. Direct that a hearing be held, pursuant to
  Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57
  L.Ed.2d 667 (1978), on the ground that the order
  authorizing electronic surveillance was issued in
  reliance upon statements in a supporting affidavit
  which were intentionally or recklessly false when
  made; and
  5. Direct that they be granted such other relief
  as may be just and proper.
  THE RAVENITE TAPES

The Ravenite tapes were created following the issuance of two orders, signed on the 25th day of September, 1989, by Judge Duffy of the United States District Court for the Southern District of New York. Those orders authorized the interception of oral communications and visual, non-verbal conduct at specified locations in and about the Ravenite Social Club, 247 Mulberry Street, New York, New York and at Scorpio Marketing, 229 West 36th Street, New York, New York. The legal justification proffered for the issuance of those orders was contained in an affidavit of George D. Gabriel, an Agent of the Federal Bureau of Investigation ("FBI") who, for the preceding four years was assigned exclusively to cases involving organized crime in the New York area. Agent Gabriel's supporting affidavit presented for consideration by the court: (1) communications intercepted pursuant to court orders between February and September 1988 and his interpretation of those communications; (2) information furnished by nine confidential informants each of whom had provided reliable information over a number of years which was never proven to be false; (3) physical surveillance conducted over a period of many months by Special Agents of the FBI; (4) efforts by the subjects of the order applied for to frustrate prior attempts to electronically intercept their communications. That affidavit, in addition, detailed the reasons for which normal investigative techniques have failed in the past and were reasonably likely to fail in the future. Having issued the orders, it follows that the judge was satisfied that the affidavit and the application accompanying that affidavit satisfied all the requirements of 18 U.S.C. § 2510 et seq. and furnished the requisite probable cause.

I.  The Franks v. Delaware Motion

The defendants contend that the affidavit of Agent Gabriel upon which the electronic surveillance order was granted contained statements which were intentionally or recklessly falsely made.

A. Substantial Showing

Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) teaches that if a defendant makes a substantial preliminary showing that (1) the affidavit upon which a search warrant was granted contained false statements made knowingly and intentionally or with a reckless disregard for the truth, and (2) if the allegedly false statement is necessary for the finding of probable cause, then the Fourth Amendment requires that a hearing be held at the request of the defendant. If the allegation of perjury or reckless disregard is established by the defendant at the hearing by a preponderance of the evidence and, with the false material set aside, the remainder of the affidavit is insufficient to establish probable cause, then the search warrant must be annulled and the yield of the search excluded as if probable cause were lacking on the face of the affidavit. The Supreme Court was careful to exclude from the embrace of the rule statements which were the results of police negligence in checking or recording facts relevant to a probable cause determination to avoid the misuse of the hearing for purposes of discovery or obstruction. The Court was also careful to explain what was meant by a "substantial preliminary showing." It said:

  There is . . . a presumption of validity with
  respect to the affidavit supporting the search
  warrant. To mandate an evidentiary hearing, the
  challenger's attack must be more than conclusory
  and must be supported by more than a mere desire
  to cross-examine. 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. They should point
  out specifically the portion of the warrant
  affidavit that is claimed to be false; and they
  should be accompanied by a statement of supporting
  reasons. Affidavits or sworn or otherwise reliable
  statements of witnesses should be furnished, or
  their absence satisfactorily explained. . . . The
  deliberate falsity or reckless disregard whose
  impeachment is permitted today is only that of the

  affiant, not of any nongovernmental informant.

438 U.S. at 171, 98 S.Ct. at 2684 (emphasis added). If all those requirements are met, and if setting aside the material that is the subject of the alleged falsity or reckless disregard, there remain sufficient content in the warrant affidavit to support a finding of probable cause, then no hearing is required. Only if the remaining content is insufficient is the defendant entitled to a hearing.

At the outset it should be noted that although Franks involved the validity of a search warrant, its teaching is equally applicable to electronic surveillance orders. United States v. Biaggi, 853 F.2d 89, 95 (2d Cir. 1988), cert. denied, 489 U.S. 1052, 109 S.Ct. 1312, 103 L.Ed.2d 581 (1989).

In the present case defendants have submitted no "[a]ffidavits or sworn or otherwise reliable statements of witnesses" specifically identifying the portion of the Gabriel affidavit that is claimed to be deliberately false or made with a reckless disregard for the truth, nor is the absence of an affidavit or reliable statement otherwise explained. An affirmation of counsel accompanying the notice of motion, contains the following starkly simple sentence: "The facts contained in the memorandum are accurate to the best of my knowledge and belief." The defendants have failed to cross the threshold requirements of Franks. The "belief" of counsel is not enough. To entertain it as though it were would require a hearing in every case in which counsel affirmed his "belief" that a supporting affidavit was false; would, without more, render virtually meaningless the presumption that the supporting affidavit is valid; and would fulfill the desire of defense counsel to cross-examine the affiant. There does not exist the faintest suggestion in Franks that a request for a hearing should, in such case, be seriously entertained. On the contrary, the Court was explicit in holding that it should not be. The defendants' motion in this regard may properly be, and hereby is, for that reason summarily denied.

B.  Falsity

This aspect of the defendants' motion may be denied, however, for other cogent reasons even if I were inclined to entertain it notwithstanding its fatal deficiency. A critical analysis of their assertions compels that conclusion when tested against the first prong of Franks, namely, whether there is a substantial preliminary showing that Agent Gabriel made false statements knowingly and intentionally or with a reckless disregard for the truth. An examination of the defendants' assertions follows:

  1.  The Reliability of the Government's Factual
      Representations in Support of the Surveillance
      Orders is Substantially Undermined by the
      Abject Failure of the Several Prior Orders.

The essence of this contention is that despite the issuance and execution of eight prior electronic surveillance orders which were extended twenty-three times, the evidence thus obtained did not contribute to the successful prosecution of John Gotti. This contention is, at the very least, patently disingenuous and is summarily rejected. See Jones v. United States, 362 U.S. 257, 270, 80 S.Ct. 725, 735, 4 L.Ed.2d 697 (1960).

  2.  The Conclusions Drawn from the 1988 Electronic
      Surveillance at the Ravenite Social Club, and
      Contained in the September, 1989 Application,
      Were Made in Reckless Disregard for the Truth.

The caption set out above, introducing this section of the defendants' memorandum, bespeaks in part, the inherent infirmity of their Franks attack on Agent Gabriel's affidavit. It is one thing to say that an affiant falsely or recklessly stated facts from which he thereafter drew conclusions. It is quite another thing to say that the conclusions drawn from facts fairly stated were falsely and recklessly made. In the latter case, that is nothing more than to say that the defendants and Agent Gabriel disagree on the interpretation of what was overheard on the Ravenite tapes. The defendants' quarrel with Agent Gabriel's conclusions can be found repeatedly on pages 12-34 of their memorandum. As has already been noted, entirely absent is any affidavit, sworn, or otherwise reliable, statement challenging the accuracy of the facts upon which Agent Gabriel based his conclusions.

The defendants' alternative assertion is that the facts gleaned from the Ravenite tapes upon which Agent Gabriel's conclusions were based were false, an exercise in creative writing by Agent Gabriel because the tapes were entirely inaudible. This assertion is in large measure inconsistent with their prior assertion and is unpersuasive for that and other reasons. There is a significant difference between pleading alternative theories of law based upon given facts and pleading alternative statements of fact to support a given principle of law. By that I mean, if the tapes were entirely inaudible and Agent Gabriel's affidavit failed to reveal that fact but nonetheless set out conversations which, by implication, he swore he heard, then clearly the first prong of Franks would be met. But the defendants cannot argue that the tapes were inaudible and also argue that they disagree with Agent Gabriel's conclusions based upon what he heard. This argument clearly implies that the tapes were audible, each party heard conversations that were captured on them but disagree about what they heard. Pleading in the alternative is an expedient which, like many expedients, can be carried too far.

The fact that the tapes were not models of acoustical excellence was not concealed by Agent Gabriel. His affidavit makes repeated reference to their audibility deficiencies. The claim cannot be made that Agent Gabriel falsified in that respect and the defendants do not make it. Judge Duffy could have required Agent Gabriel "to furnish additional testimony or documentary evidence in support of [his] application." 18 U.S.C. § 2518(2). That he required neither justifies the inference that he found that the conclusions drawn by Agent Gabriel from the intercepted conversations he swore he heard were justifiable or that he found sufficient probable cause with the affidavit as a whole, excluding some or all of those conclusions, or both.

The defendants fail in two respects to satisfy the first prong of Franks: (1) they furnish no affidavits or sworn or otherwise reliable statements of witnesses specifically identifying the portion of Agent Gabriel's affidavit they claim to be deliberately false or made with reckless disregard for the truth and fail to explain the absence of such documents, and (2) they fail to identify, by their own analysis, any statement in the Gabriel affidavit that is false. At best, they have succeeded in making it plain that they disagree with the conclusions drawn by Agent Gabriel from intercepted conversations which he repeatedly and candidly informed Judge Duffy were not captured in stereophonic sound.

C.  Probable Cause

Ignoring my own observation that pleading in the alternative is an expedient that may be carried too far, I shall consider the second prong of Franks assuming, only for this purpose, that the first prong was satisfied. The second prong requires a substantial preliminary showing by the defendants that the allegedly false or reckless statements were indispensable to a finding of probable cause. Put differently, the court must consider whether there was a sufficient basis in the remainder of the Gabriel affidavit upon which a neutral and detached magistrate could reasonably make a finding of probable cause. I hold that there was and the defendants' Franks motion must be denied for this reason as well.

The defendants attack that portion of Agent Gabriel's affidavit which informs the court of the information obtained from nine confidential informants. They assert that Agent Gabriel's reliance upon those informants was misplaced; that the information the informants provided was dated; and that the information "reflected 'facts' which were commonly available." (Def. Mem. at p. 35.) Even a casual reading of the defendants' memorandum at pages 35-38 would reveal that the burden of their attack is upon the reliability of the informants, echoing without citing them, the distant voices of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). Even a similarly casual reading of Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) would have revealed that those voices have been stilled:

  [W]e conclude that it is wiser to abandon the
  "two-pronged test" established by our decisions in
  Aguilar and Spinelli. In its place we reaffirm the
  totality-of-the-circumstances analysis that
  traditionally has informed probable cause
  determinations.
  . . . The task of the issuing magistrate is simply
  to make a practical, common-sense decision
  whether, given all the circumstances set forth in
  the affidavit before him, including the "veracity"
  and "basis of knowledge" of persons supplying
  hearsay information, there is a fair ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.