The opinion of the court was delivered by: STEVEN M. GOLD
REPORT AND RECOMMENDATION AND MEMORANDUM AND ORDER
The defendants in this case, all alleged to be aligned with the Orena faction of the Colombo Organized Crime family, are charged with conspiracy to murder members of the Persico faction in violation of Title 18, United States Code, Section 1959(a)(5), and with using and carrying firearms during and in relation to crimes of violence in violation of Title 18, United States Code, Section 924(c).
There are several pretrial motions pending. By Order dated February 15, 1995, the Honorable Eugene H. Nickerson, to whom this case was then assigned, referred to me for hearing, if and as required, and report and recommendation defendant Thomas Petrizzo's motion for a taint hearing and defendant Paul Bevacqua's motion to suppress evidence seized from him at the time of his arrest.
By Order dated January 27, 1995, the Honorable Edward R. Korman, before whom this case is now pending, referred to me for report and recommendation motions by defendants Victor Orena, John Orena and Joseph Audino to suppress evidence obtained as a result of electronic interceptions of oral communications. Finally, by Order dated March 3, 1995, Judge Korman referred to me a motion by the government to quash certain subpoenas served by the defendants pursuant to Fed.R.Crim.P. 17(c).
I. PETRIZZO'S MOTION FOR A TAINT HEARING
Defendant Petrizzo seeks a hearing to determine whether search warrants for his home and offices were issued based upon illegal electronic surveillance. For the reasons stated below, I respectfully recommend that Petrizzo's motion for a taint hearing be denied.
The government seeks to introduce at trial certain items seized during searches of defendant Petrizzo's residence and business offices. These searches were conducted pursuant to warrants issued by the United States District Court for the District of New Jersey in November, 1993. The warrant applications were supported by an affidavit submitted by Drucilla L. Wells, a Special Agent of the Federal Bureau of Investigation. The evidence recounted in the Wells affidavit includes conversations overheard during court-authorized electronic surveillance of several telephone lines. Petrizzo's office telephone was one of the lines under surveillance.
By letter motion dated February 15, 1995, defendant Petrizzo seeks a hearing to determine whether the evidence described in the Wells affidavit was tainted by illegal electronic surveillance. Petrizzo reasons that, because the government has declined to comply with his request to produce the tapes recorded pursuant to the electronic surveillance orders, he has been deprived of his right to test the legality of the electronic surveillance. Therefore, Petrizzo contends, the Court must presume that the electronic surveillance was illegal and should be suppressed. Petrizzo further argues that, because the electronic surveillance should be treated as if suppressed, he is entitled to a hearing to determine whether any other evidence recounted in the Wells affidavit is derived from the presumptively illegal electronic surveillance.
A. Failure to Produce Tapes of Intercepted Conversations Does Not Give Rise to a Presumption of Illegality
As noted above, Petrizzo asks the Court to presume that the electronic surveillance described in the Wells affidavit was conducted illegally because the government has decided not to produce tape recordings of the intercepted conversations. Petrizzo asserts that the fruits of this electronic surveillance should therefore be suppressed. Petrizzo cites no authority for the proposition, however, that he is entitled to discovery of all tapes recorded during the electronic surveillance described in the Wells affidavit.
The statutes governing electronic surveillance directly address the scope of discovery required before the government may offer intercepted communications or evidence derived from those communications in evidence. Title 18, United States Code, Section 2518(9) requires only that a defendant are furnished with "a copy of the court order, and accompanying application, under which the interception was authorized or approved." There is no statutory requirement that all recordings made pursuant to the court order be produced. To the contrary, Section 2518(10)(a) specifically provides that it rests within the discretion of the trial court to decide whether intercepted communications should be furnished to a defendant.
As noted above, the government has complied with the disclosure requirements of Section 2518(9). Defendant Petrizzo has been supplied with the applications and orders authorizing electronic surveillance. Moreover, he has never asked the court to exercise its discretion to order production of all or any of the intercepted communications described in the Wells affidavit. Thus, there no basis to presume that the intercepted conversations described in the Wells affidavit were illegally obtained.
Petrizzo argues that suppression should nevertheless be presumed because, without access to the tape recordings he seeks, be has been deprived of the means with which to test the legality of the electronic surveillance. Equipped with the orders and applications however, Petrizzo has been armed with all materials required to contest whether the constitutional and statutory requirements for electronic surveillance have been met. Petrizzo has not moved to suppress based upon the inadequacy of the applications or the illegality of the orders authorizing the electronic surveillance described in the Wells affidavit, nor has he even contended that the authorizing orders were improperly issued.
Petrizzo contends that, even with access to the applications and orders, he is unable to challenge to the legality of the electronic surveillance for failure to minimize without access to the tapes. See 18 U.S.C. § Section 2518(5). Having been provided with the applications and orders, however, Petrizzo is able to compare the scope of the interceptions authorized by the Court with those described in the Wells affidavit. Moreover, although neither the Supreme Court nor the Second Circuit has squarely addressed this issue, several courts have held that a failure to minimize interceptions requires suppression only of the unauthorized interceptions and not of all conversations -- much less the fruits of all conversations -- overheard pursuant to the court-authorized surveillance. See, e.g., United States v. Hoffman, 832 F.2d 1299, 1307-1309 (1st Cir. 1987); United States v. Dorfman, 542 F. Supp. 345, 394 (N.D. Ill. 1982)(collecting cases); United States v. Mainello, 345 F. Supp. 863, 877 (E.D.N.Y. 1972). But see Scott v. United States, 436 U.S. 128, 135 n.10, 98 S. Ct. 1717, 1722 n.10, 56 L. Ed. 2d 168 (1978); United States v. Principie, 531 F.2d 1132, 1139-1141 (2d Cir. 1976); cert. denied, 430 U.S. 905, 51 L. Ed. 2d 581, 97 S. Ct. 1173, 97 S. Ct. 1174 (1977).
It is also noteworthy that Petrizzo would not have standing to bring a minimization challenge with respect to the vast majority of intercepted conversations recounted in the Wells affidavit. The conversations described in the Wells affidavit resulted primarily from two wiretaps. One, referred to as the 'Ross' wiretap, was a tap of Petrizzo's office telephone. Wells Aff., P 6. The other, however, referred to as the "Flagship" wiretap, was a tap of telephones at the offices of a business run by George Patunas, another target of the New Jersey investigation. Wells Aff., P 26. The vast majority of the intercepted conversations described in the Wells affidavit, and the interceptions which revealed the most compelling evidence of criminality, were the product of the Flagship wiretap. Wells Aff., PP 36-53. A minimization challenge may be brought, however, only by a party with a privacy interest in the "bugged" premises or telephone line. See, e.g., United States v. Bianco, 998 F.2d 1112, 1122 (2d Cir. 1992); United States v. Poeta, 455 F.2d 117, 122 (2d Cir. 1972); United States v. Moore, 811 F. Supp. 112, 118 (W.D.N.Y. 1992); United States v. Rodriguez, 734 F. Supp. 116, 122-123 (S.D.N.Y. 1990). See also Alderman v. United States, 394 U.S. 165, 175, 89 S. Ct. 961, 968, 22 L. Ed. 2d 176 (1969). Petrizzo did not have a privacy interest in the 'Flagship" telephones, and therefore would have no standing to seek suppression for failure to minimize conversations overheard on those lines.
Defendant Petrizzo's reliance on United States v. Huss, 482 F.2d 38 (2d Cir. 1973), for the proposition that suppression should be presumed when tapes are not provided to the defense is misplaced. The district court in Huss had found a witness in contempt for refusing to answer questions after being granted immunity. The witness contended that be was pressured into becoming a government informant only after several violations of his rights, including having been confronted with the fruits of an illegal wiretap of his home. The government conceded that the wiretap had taken place, that it had been conducted without court authorization and contrary to law, and that all tapes recorded during this illegal wiretap had been destroyed. Reviewing the record of a taint hearing conducted by the district court, the Second Circuit held on these facts that the government had failed to establish that the basis for its questioning of the witness was sufficiently free of taint for the contempt finding to stand.
Huss is distinguishable from this case because the electronic surveillance in Huss was never authorized by any court, and the government was forced to acknowledge that it had been conducted unconstitutionally and illegally. Suppression in Huss was not "presumed," but required as a matter of course. Moreover, the defendant in Huss established a direct connection between the fruits of the illegally conducted electronic surveillance and the testimony of the witness in issue. Here, in contrast, the wiretaps in is sue were authorized by the court pursuant to applications and orders which have been provided to Petrizzo, and Petrizzo has thus been afforded the opportunity to challenge the legality of the surveillance. Moreover, any connection between the results of the surveillance of Petrizzo's office telephones and the remaining evidence recounted in the Wells affidavit is mere speculation. Accordingly, although Petrizzo has not been provided with tape recordings of the conversations intercepted by the government, Huss does not mandate a taint hearing.
Finally, as noted above, Petrizzo failed to move to compel production of the tape recordings in issue in a timely manner. By Order dated April 1, 1994, pre-trial motions in this case were to made returnable no later than July 28, 1994. Although a substantial number of motions were timely filed in this case, Petrizzo did not move for discovery of recordings of the intercepted conversations. Rather, Petrizzo waited to bring this motion until the scheduled trial date of this case was less than seven weeks away and more than six months had passed since the deadline for filing pretrial motions. Moreover, Petrizzo does not now seek to compel production of the tapes but instead, relying on the government's decision not to produce the recordings in discovery, asserts that he is entitled to a taint hearing. Indeed, during the course of oral argument, Petrizzo's counsel explicitly stated that he did not now seek production of the recorded interceptions; rather, he argued that the government, having decided not to produce the recordings, was now obliged to go forward with a taint hearing.
Under these circumstances, it is difficult to avoid the conclusion that Petrizzo decided against moving to compel production of the recordings as part of a deliberate strategy designed to create the circumstances which give rise to this motion.
In short, there is no requirement that the government, under the circumstances presented by this case, produce recordings of intercepted conversations. Although the court has discretion to require production of intercepted communications, Petrizzo failed to move to compel discovery of these materials within the ample time provided. Accordingly, the presumption of illegality upon which Petrizzo's motion for a taint hearing rests in unfounded.
B. The Wells Affidavit Establishes Probable Cause
Even assuming for purposes of argument that the electronic surveillance described in the Wells affidavit should be presumed illegal and therefore suppressed, it is proper for the Court to review the affidavit to determine whether the remaining evidence recounted in it states sufficient probable cause to justify the issuance of the search warrants for Petrizzo's home and office. See e.g., Laaman v. United States, 973 F.2d 107, 115 (2d Cir. 1992); cert. denied, U.S. , 113 S. Ct. 1368, 122 L. Ed. 2d 746 (1993); United States v. Taborda, 635 F.2d 131, 140-141 (2d Cir. 1980). The Wells affidavit sought warrants to search for evidence of fraud, extortion and bribery in connection with Petrizzo's operation of various related construction companies. Information from a variety of sources apart from electronically intercepted conversations is set forth in the affidavit. Petrizzo does not argue that this remaining evidence is insufficient to establish probable cause, nor could he.
In addition, the Wells affidavit describes information provided to law enforcement officers by various unidentified informants. One of these informants, described as "Source Three," had at the time of the Wells affidavit been cooperating with the government for four years and provided information which had been corroborated by other sources. Like D'Arco and Gravano, Source Three identified Petrizzo as "captain" in the Colombo organized crime family who used that position to engage in racketeering in the construction industry. Wells Aff., P 22 at n.24, P 24.
Two additional informants, described in the affidavit as "Source Two" and "Source Ten," had no criminal involvement and voluntarily provided information to the government. Wells Aff., P 12 at n. 13, P 54. Source Two described, in essence, how Petrizzo received substantial payments, under suspicious circumstances, from a company awarded a contract to build a monorail at Newark Airport. Petrizzo agreed in return for these payments to exercise his influence over various unions to ensure completion of the project on time and within budget. Wells Aff., PP 12-15. Source Ten stated that Petrizzo achieved enormous business success by using his organized crime connections to dictate terms to concrete contractors and unions. Wells Aff., P 54.
Finally, an informant described in the affidavit as "Source One," whose information has been corroborated by independent means, stated that a company controlled by Petrizzo engaged in a fraudulent scheme to obtain government contracts set aside for women and minorities. Wells Aff., P 3 at n. 1, P 11. Source One also described how Petrizzo secretly removed assets from one of his businesses by means of a scheme involving fraudulent invoices. The business subsequently filed for protection under the bankruptcy laws. According to Source One, these fraudulent transactions are recorded in the books and records of the business involved. Wells Aff., P 58. Source One further reported that Petrizzo also used bogus invoices to inflate the receivables of one his businesses, thereby inducing a bank to extend a line of credit to the business, and that documents reflecting these receivables had been in the Petrizzo's business offices. Wells Aff., PP 59-60, P 60 at n.41. Some of the information attributed to Source One has been corroborated, at least in part, by documentary evidence. Wells Aff., P 11 at n.11, P 14 at n.17
This evidence, which is merely summarized here in a general way, clearly provided the issuing Magistrate Judge with a substantial basis for concluding that the warrants sought were supported by probable cause. Accordingly, I respectfully recommend that defendant Petrizzo's motion for a taint hearing be denied.
II. MOTION TO SUPPRESS THE "AUDINO ROVING BUG" TAPES
By Order dated January 17, 1992, the Honorable Eugene H. Nickerson authorized the government to intercept and record oral communications of Victor J. Orena, Victor M. Orena, Joseph Audino and Vincent Cascio in various vehicles for a period of thirty days. Shargel Aff., Ex. C (June 20, 1994). In issuing the Order, Judge Nickerson found probable cause to believe that these individuals would discuss the commission of various offenses, including attempted murder and murder for the purpose of maintaining and increasing their position in a racketeering enterprise, as well as a number of offenses which can be described generally as involving extortionate extensions of credit or "loansharking."
This Order of authorization was renewed and extended for an additional thirty days on February 25, 1992. Shargel Aff., Ex. G.
Defendants Victor M. Orena and John Orena have moved to suppress the conversations intercepted pursuant to the orders of authorization issued by Judge Nickerson, and defendants Joseph Audino and Vincent Cascio have joined in the motion. In support of their motion, these defendants argue that the orders were not supported by probable cause, that the government failed to establish an adequate basis to support authorization for a "roving bug" which could be placed in several different vehicles, that the government did not adequately demonstrate the unavailability or impracticality of alternative investigative means, and that the ...