The opinion of the court was delivered by: WILLIAM M. SKRETNY
Presently before this Court is defendant Ben Rogers' pre-trial motion to suppress all evidence obtained by the government directly or indirectly through testimony elicited from him pursuant to a grant of use and derivative-use immunity under 18 U.S.C. § 6002. Defendant argues that this evidence is inadmissible according to the principles enunciated in Kastigar v. United States, 406 U.S. 441, 92 S. Ct. 1653, 32 L. Ed. 2d 212 (1972). The government argues that all of its anticipated evidence was obtained from legitimate sources independent of Rogers' immunized testimony and, as such, it is admissible according to Kastigar.
In support of his motion, defendant Rogers has submitted a Motion in Limine ("D. Motion"); a Memorandum of Authorities in Support of Defendant's Motion in Limine ("D. Memo"); a Supplemental Reply to Government's Surresponse Served January 20, 1994; and a letter dated May 13, 1993 clarifying certain information contained in defendant's Memorandum of Law.
In opposition to defendant's motion, the government has submitted a Response to Defendant Rogers's Motion for a Kastigar Hearing ("G. Response"); and a Surresponse to the Defendant's May 28, 1993 Reply to the Government's Response to the Defendant's Motion for a Kastigar Hearing ("G. Surresponse").
As discussed below, this Court conducted a Kastigar hearing on February 8, 1994 to determine whether the government had legitimate independent sources for its proof against defendant Rogers. In preparation for that hearing, the government submitted an Affidavit and Response to Kastigar Motion of Defendant Ben Rogers prepared by Assistant United States Attorney Martin J. Littlefield, with exhibits ("Littlefield Affid."); an Affidavit of Assistant United States Attorney Anthony M. Bruce ("Bruce Affid."); an Affidavit of Assistant United States Attorney William J. Knapp ("Knapp Affid."); and an Affidavit of Special Agent Dean G. Naum of the Federal Bureau of Investigation ("Naum Affid.").
During the Kastigar hearing, the government's case was presented by Littlefield, who introduced the testimony of Naum and Bruce. Defendant Rogers' counsel conducted cross-examination of these witnesses. Furthermore, the government introduced a number of exhibits: a copy of Rogers' June 10, 1982 immunized grand jury testimony ("Exh. A"); a transcript of Rogers' July 9, 1984 immunized testimony provided during the trial of Nicholas Mauro ("Exh. B"); a copy of the present Superseding Indictment ("Exh. C"); a copy of the government's exhibit list pertaining to the upcoming trial ("Exh. D"); a copy of a December 6, 1989 wiretap application ("Exh. F"); a copy of a second wiretap application dated January 26, 1990 ("Exh. G"); a search warrant application dated February 3, 1990 ("Exh. H"); and a report from the FBI office in Louisville, Kentucky to the FBI office in Buffalo, New York concerning defendant Rogers ("Exh. I"). The government did not introduce a copy of its witness list pertaining to the upcoming trial; however, a copy is attached as an exhibit to the Littlefield Affidavit ("Exh. E").
After considering all these submissions, as well as the testimony elicited during the Kastigar hearing, this Court will deny defendant's motion to suppress evidence for the reasons discussed below.
On June 10, 1982 defendant provided testimony before a federal grand jury investigating the activities of one of defendant's present codefendants, Nicholas Mauro. In February 1983 the grand jury returned a four-count indictment charging Mauro with filing false tax returns, and with conspiracy to engage in interstate bookmaking, to commit bank fraud, and to defraud the United States. On July 9, 1984, at Mauro's trial, defendant Rogers testified about the nature of sports gambling in general, and about his gambling relationship with Nicholas Mauro. Both Rogers' grand jury testimony and trial testimony were elicited under a court-ordered grant of immunity pursuant to § 6002. Assistant United States Attorney Anthony M. Bruce examined Rogers before the grand jury, and represented the government during the trial of Nicholas Mauro. However, during Mauro's trial, Rogers was examined by Assistant United States Attorney William J. Knapp. Mauro was convicted on all four counts of the indictment.
Thereafter, on January 16, 1992 another federal grand jury returned an indictment naming Rogers, Mauro, and five other codefendants. Counts I and II of the indictment charged each of the defendants with conducting an illegal gambling business and conspiracy, during the period of April 16, 1981 to March 1, 1990, in violation of 18 U.S.C. §§ 1955, 371 and 2. This period encompassed the times at which Rogers provided his immunized grand jury and trial testimony Furthermore, Counts IX and X charged defendant Nicholas Mauro with violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO") in connection with his gambling activities, pursuant to 18 U.S.C. § 1961 et seq. One of the RICO predicate offenses alleged in Counts IX and X was the gambling crime alleged in count II.
Bruce presented the government's case to the grand jury, and is assigned to represent the government during the imminent trial involving defendant Rogers.
In his Affidavit, FBI Special Agent Naum avers that he headed the investigation leading to the present Superseding Indictment, which began in late 1988. He states that at no time during the course of the investigation was he aware that Rogers had testified before a federal grand jury in June 1982 or at the trial of Nicholas Mauro in July 1984. He states that the first time he learned of such testimony was in connection with the present Kastigar motion. He indicates that he has never reviewed such testimony, and has no information regarding the contents thereof. Finally, he states that in the wiretap and search warrant applications mentioned above (which he assisted in preparing), there is no mention of Rogers' immunized testimony.
Bruce states in his Affidavit that he has overseen the presentation of this case to the grand jury and the preparation of this case for trial. He states that in June 1982 he had the occasion to subpoena Rogers before a federal grand jury investigating the bookmaking activities of Nicholas Mauro and other individuals. He indicates that he had learned of Rogers from investigations conducted by the Internal Revenue Service involving Mauro's bookmaking activities. Bruce attests that at that time he possessed the following information about Rogers:
a. Nicholas Mauro was known to have an ownership interest in a hotel in the Miami area during the late '70s and early '80s. A review of records from that hotel revealed that a Mrs. Carol Goldberg of Louisville, Kentucky had stayed at Mauro's hotel free of charge.
b. Further investigation revealed that Mrs. Goldberg was the daughter of Ben Rogers.
c. Inquiry of IRS Special Agents in the Louisville area revealed that Ben Rogers was a well known bookmaking figure in the Louisville area.
d. Subpoenaed bank records had revealed a $ 5,000 official bank check issued to a restaurant known to be controlled by Ben Rogers (although ownership was listed in his wife's name) with the remitter being Nicholas Mauro.
(Bruce Affid. P 4). Bruce avers that the investigation that led to the present Superseding Indictment commenced in late 1988, and originally pertained solely to the activities of Nicholas Mauro and his associates in the Western New York area. Bruce writes, "The investigative file was opened based upon source information indicating that Nicholas Mauro was about to be released from jail and that he had already begun to make preparations to reassert day-to-day control over his bookmaking enterprise. . . ." (Ibid. P 6). Bruce indicates that the investigation involved wiretaps of phones used by Mauro's alleged bookmaking operation, and the execution of search warrants.
However, Bruce states that he was not involved in the investigation, and that the investigation was supervised by Knapp. Bruce writes that he was assigned to the Rochester, New York office of the Justice Department's Organized Crime Strike Force, and was only "vaguely aware" of the Mauro investigation. (Ibid. P 7). He understands that Rogers was not originally a target of the investigation, but became a target only after he was overheard during wiretapped telephone conversations that allegedly involve him in Mauro's bookmaking activities. Rogers was identified through pen registers placed on Mauro's phones. Furthermore, Bruce indicates that since the investigation began, an individual by the name of Peter Spero has been an associate of Mauro, and has possessed extensive information about Mauro's bookmaking activities.
Moreover, the wiretaps and other aspects of the investigation revealed other Mauro associates, including one Dana Iser. Bruce concludes his Affidavit by stating:
Knapp states in his Affidavit that he was involved in the early part of the investigation leading to the present Superseding Indictment, including the preparation of the wiretap and search warrant applications. He states that at the beginning of the investigation, the only targets were Nicholas Mauro and his associates in the Western New York area. Rogers became a target only after he was overheard during wiretapped telephone conversations in late 1989 and 1990. Knapp avers that at no time during the investigation did he use any of Rogers' immunized testimony, nor did he recall the existence of such testimony beyond a general knowledge that Rogers had been associated with Mauro. Knapp writes, "At no time did I discuss with Special Agent Dean Naum, the agent in charge of the present investigation/indictment, the contents or even the existence of the aforesaid Grand Jury/trial transcripts." (Ibid. P 5). Finally, Knapp refers to the wiretap and search warrant applications (Exhs. F, G, and H), indicating that "there was absolutely no use of nor reference to the aforesaid transcript nor was any information derived from that testimony and used in this investigation." (Ibid. P 6).
Littlefield states in his Affidavit:
Mr. Bruce has advised me that the total evidence against Ben Rogers will consist of the following:
a. Use of the 1989-1990 wire tap;
b. Use of certain physical evidence seized in the execution of the February 1990 Search Warrants;
c. Agent testimony to the effect that Pen Registers were placed on phones in the Western District of New York showed calls to and from phones listed to Ben Rogers during 1989-1990;