The opinion of the court was delivered by: EUGENE H. NICKERSON
NICKERSON, District Judge
Defendants, alleged members or associates of the so-called Luchese Organized Crime Family, have been indicted in seventy-two counts for various violations of the United States Criminal Code, including racketeering, 18 U.S.C. § 1962 (c), racketeering conspiracy, 18 U.S.C. § 1962(d), murder, 18 U.S.C. § 1952B(a)(1), conspiracy to murder, 18 U.S.C. § 1959(a)(5), attempted murder, 18 U.S.C. § 1959(a)(5), labor payoffs, 29 U.S.C. § 186(b)(1), labor payoff conspiracy, 18 U.S.C. § 371, extortion conspiracy, 18 U.S.C. § 1951, and conspiracy to defraud the United States, 18 U.S.C. § 371.
The court has before it motions by defendant Anthony Casso, allegedly the Underboss of the Luchese Family, and by defendants Salvatore Avellino and Frank Lastorino, both allegedly Captains in the Luchese Family.
Casso, Lastorino, and Avellino have moved pursuant to the Fourth Amendment to the United States Constitution, 18 U.S.C. § 2510 et seq., and Federal Rule of Criminal Procedure 12(b)(3), for an order suppressing their monitored conversations obtained from electronic surveillance of three cellular telephones. Casso has also moved to suppress the fruits of searches of a residence in New Jersey and of two safe deposit boxes. Lastorino and Avellino have moved to suppress the fruits of searches of their residences. Avellino has moved for a bill of particulars.
Casso and Lastorino say that the warrant to wiretap two Brooklyn cellular telephones used by Lastorino was obtained without probable cause.
The affidavit in support of the application to wiretap, sworn to December 7, 1992, says that there is probable cause to believe that Lastorino and his co-conspirator are harboring a fugitive, George Zappola, in violation of New York Penal Law §§ 205.65 and 205.60. It cites multiple sources for probable cause to believe that Lastorino was using the two phones in question, was in regular contact with Zappola, and was hindering apprehension of Zappola. These sources include information from two reliable confidential informants, physical surveillances, pen registers, and telephone records. The affidavit also explains the relationship between Casso, Lastorino, Zappola and other members and associates of the Luchese Family.
Defendants argue that the affidavit was insufficient because, as added confirmation of Zappola's criminal activities, it refers to what defendants say is unbelievable 1991 testimony of one Dominick Costa, a former member of the Luchese Family.
According to the government, Costa was a witness in a prosecution of members of the so-called Bypass Gang, a sophisticated burglary ring. Zappola was a codefendant but not tried because he had absconded. Costa testified that Zappola participated in some of the burglaries and also that there had been an unsuccessful attempt on Costa's own life. He identified two of the then defendants, Michael Bloome and Salvatore Fusco, as engaged in the attempt. Both were convicted.
In September 1993 the United States Attorney asked the court to vacate the convictions of Bloome and Fusco. The government had by then received an admission from one Carmine Sessa that he had shot Costa. After further investigation the United States Attorney concluded that during a suppress ion hearing a civilian witness had falsely denied she had been shown photographs shortly before viewing an array containing Fusco's photograph. During the same hearing a law enforcement official (apparently a local official), who had shown her the photographs before the viewing, misled the court concerning the circumstances of the photographic identification.
Contrary to the implication of defendants, the government did not tell the court that Costa had perjured himself.
There was ample evidence to justify issuance of the warrant even absent any reference to Costa's testimony, which provided mere general information about Zappola's criminal background. Moreover, there is no showing, indeed no suggestion, that the government had information that Costa had testified untruthfully and withheld that information in applying for the wiretap. Franks v. Delaware, 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978). This court concludes that the affidavit was sufficient to show probable cause. Illinois v. Gates, 462 U.S. 213, 231, 76 L. Ed. 2d 527, 103 S. Ct. 2317 (1983); United States v. Gotti, 794 F.2d 773, 777 (2d Cir. 1986); United States v. Gallo, 863 F.2d 185, 191 (2d Cir. 1988), cert. denied, 489 U.S. 1083, 103 L. Ed. 2d 843, 109 S. Ct. 1539 (1989).
Defendants also urge that the recordings should be suppressed because not sealed within the requisite statutory period.
Under 18 U.S.C. § 2518(8)(a) recordings must be sealed "immediately upon the expiration of the period of the order." Defendants say that the interceptions ceased on January 6, 1993, that the tapes were not sealed until January 8, 1993, and that thus the government did not seal "immediately" and had provided no explanation for the delay.
The sealing was timely under the ruling in United States v. Massino, 784 F.2d 153, 158 (2d Cir. 1983). There the court said, in pertinent part: "In future cases, we direct the following procedure. Tapes should generally be sealed within two days of the expiration of the wiretap order. If the government does not meet this schedule but completes the sealing within five days of the expiration of the order, it shall file in camera with the court an explanation, with supporting affidavits, of the reasons for the delay." See also United States v. Ojeda Rios, 875 F.2d 17, 20 (2d Cir. 1989); United States v. Pitera, 5 F.3d 624, 627 (2d Cir. 1993).
The order authorizing the Lastorino wiretap was valid.
The order authorizing the Casso wiretap was issued on January 13, 1993 by Judge Dickinson R. Debevoise of the United States District Court for the District of New Jersey. It states that it appears that Casso and Lastorino have committed, are committing, and are about to commit crimes of racketeering, extortion, and murder, that Casso is a fugitive, that his location and evidence of those crimes will be obtained through the wiretap, that normal investigative procedures have been tried and have failed, and that other procedures reasonably appear to be unlikely to succeed, if tried, or are too dangerous.
Casso, who became a fugitive on May 7, 1990, argues that the application for the wiretap was improper because the government could have found and arrested him through normal investigative means and because the government did not intend to use the wiretap to develop a RICO conspiracy case against him and the Luchese Family.
The affidavit, sworn to on January 13, 1993 by Special Agent Hoyt M. Peavey of the Federal Bureau of Investigation, summarizes the history and extensive criminal activities of the Luchese Family, including its New Jersey component, and describes some of the efforts to find Casso. In January of 1993, through interceptions of calls from Casso to Lastorino over one of the monitored Brooklyn telephones, the government identified the calls as coming from a particular cellular phone. Authorities then traced one of these Casso calls as emanating from a grid in Northern New Jersey, the area where 79 Waterloo Road, Budd Lake, the residence of Rosemarie Billotti, a long time close friend of Casso, was located.
According to the affidavit, the intercepted calls between Casso and Lastorino revealed that they were extorting funds with the assistance of other Luchese Family members and were otherwise engaged in criminal activity.
In describing the inadequacy of normal techniques to accomplish these two objectives, the affidavit says the discovery of the cellular telephone represents the best opportunity to find and arrest Casso, an objective unsuccessfully sought for nineteen months. Moreover, normal techniques cannot succeed in revealing the scope of the Luchese criminal enterprise, the identities of those participating in it, and the manner and means by which they perform their functions and protect themselves.
The affidavit also details the reasons why physical surveillances, pen registers, toll records, undercover operations, potential witnesses, grand jury investigations, and searches and seizures are inadequate or unfeasible.
Casso argues that the wiretap was useless to develop a RICO case against the Luchese Family and that the government sought merely to affirm Casso's presence at the Budd Lake residence, an objective available, indeed already obtained, through normal investigative means.
There is no basis for the contention that the wiretap would have been of no value in developing a RICO conspiracy case against Casso and the Luchese Family. It is true, as Casso says, that the government had obtained sufficient evidence to bring other cases involving that family, notably the so-called "Windows" and "Amuso" cases, CR 90-446(S-1). But because some members of the Luchese Family had been successfully prosecuted did not mean that Casso was refraining from crime or that among the hundreds of members or associates of the Luchese Family none had committed or were about to commit other criminal acts. As the affidavit shows, Casso himself had been active in Luchese Family criminal affairs while a fugitive even after Amuso's conviction in 1992.
A legitimate purpose of the application for the wiretap was to obtain additional evidence of Luchese Family criminal activities. The fact that the wiretap became inactive after Casso was arrested and was no longer able to use the cellular phone in question is of no significance.
Moreover, Casso had been a fugitive since May 7, 1990 and had not been caught. While the Budd Lake address was one of the places the government supposed Casso might be hiding, there was no assurance in the absence of the wiretap that he would be there when agents came to arrest him. ...