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UNITED STATES v. AMBROSIO

August 31, 1995

UNITED STATES OF AMERICA against ANIELLO AMBROSIO, et al., Defendants.


The opinion of the court was delivered by: DENNY CHIN

 CHIN, D.J.

 Defendant Aniello Ambrosio moves to suppress certain wiretap evidence and renews his motion for release on bail. For the reasons stated below, these motions are denied. Defendant Calogero Salemi moves pro se to dismiss the indictment and for release on bail. For the reasons stated below, his motions are denied.

 DISCUSSION

 I. Ambrosio's Motion to Suppress Wiretap Evidence

 Aniello moves to suppress all evidence derived from two wiretaps that were placed on the telephones at his pizzeria, the Famous Original Ray's Pizza ("Ray's Pizza Telephones #1 and #2"). The warrant authorizing the wiretaps, issued by Judge McKenna, was based on the affidavit of FBI Agent Richard Demberger, dated February 9, 1993 (the "Demberger Affidavit"). *fn3"

 Ambrosio makes three arguments for the suppression of the wiretap evidence. First, he argues that the Affidavit did not contain sufficient facts to support a finding of probable cause that he was engaged in criminal activity. Second, he contends that the good faith exception to the exclusionary rule does not apply to wiretaps. Third, he argues that the affidavits omitted crucial information that would have persuaded Judge McKenna to deny the application for a warrant.

 1. Standards

 Wiretap warrants are governed by 18 U.S.C. § 2510 et seq. (also referred to as "Title III"). Section 2518(3)(a-d) requires that before ordering the interception of wire communications, a judge must determine, based on the facts presented in an affidavit, that 1) there is probable cause to believe that an individual is committing, has committed, or is about to commit, a crime; 2) there is probable cause that communications about the crime will be obtained through the wiretap; 3) alternative means have failed or are too dangerous or unlikely to succeed; and 4) there is probable cause to believe that the premises to be wiretapped are being used for criminal purposes or are used or owned by the target of the wiretap. See United States v. Wagner, 989 F.2d 69, 71 (2d Cir. 1993); United States v. McGuinness, 764 F. Supp. 888, 898 (S.D.N.Y. 1991). Ambrosio argues only that the first element is lacking.

 Probable cause is established if the "totality of the circumstances" contained in the affidavit indicates a probability of criminal activity and that evidence of the criminal activity could be obtained through the use of electronic surveillance. 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, 224, 13 L. Ed. 2d 142 (1964) (probable cause for arrest); United States v. Ruggiero, 824 F. Supp. 379, 398 (S.D.N.Y. 1993), aff'd, 44 F.3d 1102 (2d Cir. 1995). Thus, prima facie proof is not required; rather, only a probability of criminal activity needs to be established by the affidavit. Wagner, 989 F.2d at 72 (quoting Illinois v. Gates, 462 U.S. 213, 235, 103 S. Ct. 2317, 2330, 76 L. Ed. 2d 527 (1983)).

 Affidavits made in support of a wiretap warrant must be read as a whole and construed in a "realistic and common-sense manner, so that [their] purpose is not frustrated." United States v. Ruggiero, 824 F. Supp. at 399 (citing United States v. Harris, 403 U.S. 573, 577-79, 91 S. Ct. 2075, 2079-80, 29 L. Ed. 2d 723 (1971)); accord United States v. Travisano, 724 F.2d 341, 345-46 (2d Cir. 1983). In addition, since wiretap orders are entitled to a presumption of validity, see United States v. Fury, 554 F.2d 522, 530 (2d Cir. 1977), cert. denied, 436 U.S. 931, 98 S. Ct. 2831, 56 L. Ed. 2d 776 (1978), substantial deference must be accorded to Judge McKenna's finding of probable cause. Wagner, 989 F.2d at 72; United States v. Nersesian, 824 F.2d 1294, 1305 (2d Cir.), cert. denied, 484 U.S. 958, 108 S. Ct. 357, 98 L. Ed. 2d 382 (1987). As a reviewing court, I am limited to determining whether the issuing judge had a substantial basis for his finding. Wagner, 989 F.2d at 72 (citing Illinois v. Gates, 462 U.S. at 236, 103 S. Ct. at 2331). Any doubts as to the existence of probable cause should be resolved in favor of upholding the authorization. Illinois v. Gates, 462 U.S. at 237 n.10, 103 S. Ct. at 2331 n.10; Ruggiero, 824 F. Supp. at 399.

 2. Probable Cause as to Aniello Ambrosio

 Ambrosio concedes that the government likely had probable cause to tap the Ray's Pizza telephones as a general matter. (Def. Mem. at 17). He argues, however, that the "tenor of the allegations against [him in the Demberger Affidavit] is amorphous and speculative" and that the government therefore did not have probable cause to suspect him of any criminal activity and to intercept his telephone conversations. (Def. Mem. at 12). Ambrosio minutely dissects the Affidavit and contends that each piece of information against him, taken alone, is insufficient to support a finding of probable cause. This approach, however, is flawed, for the allegations contained in a wiretap affidavit should be read as a whole and in a common-sense manner. See United States v. Ruggiero, 824 F. Supp. at 399. Keeping the above principles in mind and according substantial deference to Judge McKenna's order, I conclude that the Demberger Affidavit provides sufficient probable cause to suspect Ambrosio of engaging in criminal activity.

 First, the affidavit charts 180 calls that were made to Ambrosio's cellular phone from the Ray's Pizza Telephones from September 9, 1992 to January 9, 1993, the same phones that had been used by Ray's Pizza employees to negotiate drug deals with a confidential informant (the "CI"). *fn4" (P 84, pp. 63-69). In addition, Ray's Pizza had been mentioned as a possible locale to complete a drug transaction. (P 57). Second, Salvatore Catalano, a Ray's Pizza employee, called Ray's Pizza twice from a restaurant called the Vita Caffe (where the CI negotiated for drugs with Matteo Gambino, a defendant in a related case) and asked to speak with a "Marcello," who, Demberger believed, is Ambrosio. When told that Marcello was not there, Catalano asked that Marcello call him back at least to say, "I don't have anything for you right now -- I can't waste time with you." (P 37-38).

 Third, on August 21, 1992, FBI surveillance agents saw Ambrosio travel to Taibi Import-Export, a warehouse owned by a known heroin trafficker, Vincent Pullazaro. (P 58 n.13). Fourth, Ambrosio was seen at the Signora Social Club, which is operated by a Sandro Aiosa, a member of the "Sicilian Mafia" involved in heroin and cocaine trafficking. (P 89). The Social Club was also frequented by two persons convicted of distributing kilogram quantities of heroin to an FBI undercover agent. (Id.). In addition, two calls were made from the Ray's Pizza Telephones to a telephone listed in Aiosa's name.

 Fifth, Ambrosio either traveled to or paid for others' trips to Italy, Colombia, and Albania. Demberger, based on his experience, identified those countries as either "known sources of heroin or commonly used [] routes for the importation of heroin into the United States." (P 78). Specifically, Ambrosio travelled to Barranquilla, Colombia on two occasions in June and July 1992 and made telephone calls to Ray's Pizza from his plane before and after each trip, as well as en route from the Miami International Airport. (PP 95-96). Furthermore, at least two telephone calls were made between November 1992 and January 1993 from the Ray's Pizza Telephones to a telephone number listed to Antonio Jose Bojanini-Safdie residing in Barranquilla, Colombia. In 1986, Bojanini-Safdie was the subject of a federal fugitive warrant issued in Florida in connection with the importation of about 30,000 pounds of marijuana from Colombia into the United States. (P 97). Ambrosio also paid for airline tickets for a G. Lazzari and a T. Carriera for travel from New York to Rome, Italy, with a stop in Albania. (P 101). Ambrosio also paid for a room at the JFK Holiday Inn the day that T. Carriera left for Rome. (Id.).

 Finally, the Affidavit states that Catalano called Ray's Pizza from the Vita Caffe and spoke with Ambrosio concerning what Demberger believed to be a "narcotics transaction involving Ambrosio's source in Canada, who must be notified about whether a particular narcotics transaction will go forward." (P 104).

 Thus, when read together in context and as a whole, and not dismantled in piece-meal fashion, these allegations support Judge McKenna's finding that probable cause existed to believe that Ambrosio was engaging in criminal activity.

 Ambrosio makes several separate arguments concerning the sufficiency of the Affidavit. Each of these arguments is rejected. First, Ambrosio argues that the numerous calls to his cellular phone from the Ray's Pizza Telephones do not support a finding of probable cause because he is the owner of Ray's Pizza (a fact that was missing from the Affidavit) and thus would have a legitimate reason to call Ray's Pizza frequently. (Def. Mem. at 14, 17). *fn5" What Ambrosio does not recognize, however, is that his ownership of the pizzeria could support a probable cause finding: as Ambrosio concedes, the Demberger Affidavit contained sufficient information to believe that drug negotiations were taking place at Ray's Pizza and Ambrosio, as the owner of the pizzeria, could be presumed to have knowledge of the activities occurring there. Cf. United States v. Anderson, 279 U.S. App. D.C. 413, 881 F.2d 1128, 1141 (D.C. Cir. 1989) (defendant's residence in apartment and possession of keys to bedroom in which gun was located sufficient facts to justify inferring knowledge and constructive possession of gun); United States v. Johnson, 769 F. Supp. 389, 393 (D.D.C. 1991) (residence in house on regular basis sufficient basis upon which to infer knowledge of drug activity in house), aff'd, 38 F.3d 609 (1994) (citing United States v. Jenkins, 289 U.S. App. D.C. 83, 928 F.2d 1175, 1179 (D.C. Cir. 1991)). In addition, the fact that information in the wiretap application may have an innocent explanation does not mean that the information cannot also support a finding of probable cause. See United States v. Fama, 758 F.2d 834, 838 (2d Cir. 1985); United States v. Ivkosic, 700 F.2d 51, 57 (2d Cir. 1983) (fact that meeting among defendants, allegedly for bombing conspiracy, could be susceptible of "perfectly innocent" explanation does not defeat probable cause); United States v. Gomez, 758 F. Supp. 145, 149 (S.D.N.Y. 1991).

 Ambrosio next argues that Catalano's phone call on September 15, 1992, which Demberger believed involved a narcotics deal (P 104), cannot support a probable cause finding against him because there is nothing explicit in the conversation to indicate a drug transaction. I reject this argument because Judge McKenna was entirely justified in relying on Demberger's expert opinion in determining whether the Affidavit provided sufficient probable cause. *fn6" See United States v. Benevento, 836 F.2d 60, 71 (2d Cir. 1987), cert. denied, 486 U.S. 1043, 108 S. Ct. 2035, 100 L. Ed. 2d 620 (1988) (government agent's expert opinion is an "important factor" in probable cause determination); United States v. Young, 745 F.2d 733, 758 (2d Cir. 1984), cert. denied, 470 U.S. 1084, 105 S. Ct. 1842 (1985) (magistrate judge entitled to credit agent's "specialized knowledge" about practices of narcotics dealers). Ambrosio's argument that Demberger had no reason to conclude that Catalano was asking for Ambrosio when he called Ray's Pizza on November 11, 1992 and asked for "Marcello" must fail for the same reason. In addition, Ambrosio himself states in his affidavit that he is also called "Marcello" or "Neil." (Ambrosio Affidavit, P 1).

 With respect to his visits to Vincent Pullazaro's warehouse and the Signora Social Club, Ambrosio is correct in arguing that his "mere association" with known drug traffickers cannot form the basis for a probable cause finding. See Sibron v. State of New York, 392 U.S. 40, 62, 88 S. Ct. 1889, 1902, 20 L. Ed. 2d 917 (1968) (fact that defendant was seen talking to known drug addicts, by itself, is not sufficient probable cause to believe defendant was engaging in criminal activity); United States v. Sanchez, 1992 WL 315639, *1 (S.D.N.Y. 1992) (citing United States v. Almanzar, 749 F. Supp. 538, 540 (S.D.N.Y. 1990)). *fn7" The Affidavit, however, does not rely simply on these associations but rather specifies other evidence against Ambrosio. Keeping in mind that the allegations in the Affidavit should be read in context, this argument is rejected.

 Finally, it is true that "people other than criminals travel to Italy, Albania and Colombia." (Def. Mem. at 12). However, in addition to traveling to those countries, Ambrosio also worked with persons known to be engaging in drug transactions, frequented places patronized by known drug traffickers, and engaged in suspicious telephone calls. On this combination of facts, it was reasonable for Judge McKenna to find probable cause.

 3. Probable Cause as to Each Interceptee

 Even if the government did not have probable cause to suspect Ambrosio of engaging in criminal activity, his suppression motion must be denied because the government is not required to show ...


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