faith. The Second Circuit, in affirming the district court's decision, declined to look directly to the exclusionary rule of the statute. Rather, the court explained that, notwithstanding Title III's suppression provision, a Franks analysis was appropriate in the wiretap context because the purposes of § 2515, to "protect the privacy of communications [and] to ensure that the courts do not become partners to illegal conduct," are consistent with the Franks standard of good faith. Id. at 1126.
Thus, since the Franks standard of good faith is applicable to an affidavit made in support of a wiretap application, even in light of the statute's exclusionary rule, the good faith exception to the probable cause requirement, as set forth in Leon, should also apply to wiretap warrants.
Under the good faith doctrine enunciated in Leon, suppression of evidence is proper only if: 1) the issuing judge abandoned his detached, neutral role; 2) the agent was dishonest or reckless in preparing the affidavit supporting the issuance of the wiretap order; or 3) the agent's reliance on the warrant was not objectively reasonable. United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984). Ambrosio does not argue that Judge McKenna abandoned his detached, neutral role or that any agent's reliance on the warrant was not objectively reasonable, leaving only the issue of whether Demberger was dishonest or reckless in preparing his affidavit. As discussed in greater detail below, Ambrosio presents absolutely no evidence of any dishonesty or recklessness on Demberger's part, nor does he provide any evidence even to infer such dishonesty or recklessness. Accordingly, I hold that the agents acted in good faith on the sufficiency of Judge McKenna's wiretap warrant when they intercepted Ambrosio's communications over the Ray's Pizza telephones. Suppression is therefore not appropriate and the motion must be denied.
C. Franks v. Delaware
Ambrosio argues that even if the Demberger Affidavit presented sufficient probable cause, it was only because Demberger omitted certain crucial information which, if included, would have negated any probable cause as to him. Specifically, Ambrosio contends that if Judge McKenna had been advised that Ambrosio owned Ray's Pizza and thus had an innocent reason to be called so frequently from the Ray's Pizza Telephones, the Judge would not have issued the wiretap warrant.
Pursuant to Franks v. Delaware, supra, an affidavit in support of a wiretap application may be challenged and evidence suppressed if the defendant can make a substantial preliminary showing that the affiant either deliberately, or with reckless disregard, submitted an affidavit omitting material facts. See Rivera v. United States, 928 F.2d 592, 604 (2d Cir. 1991) ("Intentional or reckless omissions of material information . . . may serve as the basis for a Franks challenge.") (citing United States v. Campino, 890 F.2d 588, 592 (2d Cir. 1989), cert. denied, U.S. , 110 S. Ct. 1787 (1990)). Material facts are those that are necessary to the finding of probable cause. Frank v. Delaware, 438 U.S. at 155-56, 98 S. Ct. 2674. Reckless disregard may be interred where the omitted information was "clearly critical to the probable cause determination." Rivera, 928 F.2d at 604.
Assuming that the government was obligated to show probable cause with respect to Ambrosio (which, as I have held above, it was not), his Franks argument must still fail because he did not show that the omission was necessary to a finding of probable cause. See United States v. Martinez, 869 F. Supp. 202, 208 (S.D.N.Y. 1994). The affidavit contained other information about Ambrosio, including suspicious telephone calls with Catalano, travel to countries known for drug trafficking and association with known drug traffickers, which was sufficient to support a probable cause finding against him. Furthermore, as noted above, the fact that Ambrosio owned Ray's Pizza could support, not negate, a finding of probable cause: Ambrosio concedes that there was evidence that drug conspiracy conversations took place over the Ray's Pizza Telephones and Ambrosio, as the owner of the pizzeria, could be deemed to have knowledge of the events occurring at his establishment. Finally, Ambrosio does not allege that Demberger knew or should have known of Ambrosio's ownership, nor does he allege any outrageous conduct with respect to the omission of this fact to infer that it was done deliberately or recklessly. Cf. Golino v. City of New Haven, 950 F.2d 864, 871-72 (2d Cir. 1991), cert. denied, 120 L. ed. 2d 902, U.S. , 112 S. Ct. 3032 (1992) (reckless disregard could be inferred in murder case where police omitted from application for arrest warrant the fact that suspect weighed at least 50 pounds more than killer, that prime accuser made inconsistent statements, and that killer's fingerprints did not match those of suspect); United States v. Reivich, 793 F.2d 957, 961 (8th Cir. 1986) (noting that courts "generally have relied also on additional circumstances in support of their findings of recklessness"); United States v. Davis, 199 U.S. App. D.C. 95, 617 F.2d 677, 694 (D.C. Cir. 1979), cert. denied, 445 U.S. 967, 100 S. Ct. 1659 (1980) (recklessness should be inferred from omission of information only when result of "flagrant police actions").
Thus, because the Demberger Affidavit was sufficient to establish probable cause without the omitted information and because there is no reason to believe that the omitted information, if included, would have cast doubt on the existence of probable cause, Ambrosio's request for a Franks hearing and his motion to suppress are denied.
II. Ambrosio's Motion for Release on Bail
On March 30, 1995, I denied defendant Aniello Ambrosio's motion to be released on bail pending the trial of this case because he presents an unacceptable risk of flight and a danger to the community. In his motion, Ambrosio argued that the wiretap evidence against him was obtained illegally. I rejected that argument as premature because Ambrosio had not moved to suppress the evidence. Ambrosio appealed my decision, which was affirmed on May 11, 1995.
Ambrosio now renews his application for release on bail, asserting that without the wiretap evidence, the government's case against him is weak. Since I have denied his suppression motion for the reasons stated above, his renewed motion for bail must also be denied.
III. Salemi's Motion to Dismiss the Indictment
Salemi moves pro se to dismiss the indictment against him for infractions of the grand jury process and for release from custody because of Speedy Trial Act violations.
With respect to the grand jury, Salemi specifically contends that 1) the grand jury that indicted him was not a fair cross-section of the community, and 2) the indictment is fatally defective because it was not reviewed by the grand jury and was not signed or returned in open court.
A. Grand Jury
1. Fair Cross Section
Salemi contends that the methods used to select grand juries in the Southern District of New York are unconstitutional because the jury panels do not represent a fair cross-section of the population. He cites a November 1994 radio broadcast on National Public Radio that reported that qualified citizens of African American and Hispanic descent from New York and Bronx counties were allegedly being systematically excluded from the jury selection process in violation of the Fifth and Sixth Amendments and the Jury Selection and Service Act, 28 U.S.C. § 1861 et seq.
The Sixth Amendment requires that jury panels be drawn from sources representing a "fair cross section of the community" in which the defendant is being tried. Taylor v. Louisiana, 419 U.S. 522, 538, 95 S. Ct. 692, 701, 42 L. Ed. 2d 690 (1975); United States v. Jackman 46 F.3d 1240, 1244 (2d Cir. 1995). The Jury Selection and Service Act similarly requires that grand juries in federal courts be selected at random from a fair cross section of the community in the district where the court convenes. 28 U.S.C. § 1861.
Salemi relies on two cases in support of his claim that the process of selecting the grand jury panel in his case violated the Sixth Amendment: United States v. Jackman, 46 F.3d 1240 (2d Cir. 1995), and United States v. Osorio, 801 F. Supp. 966 (D. Conn. 1992). These cases, however, are inapplicable; both concerned the jury pool selection process for the district of Connecticut which, because of computer and human error, almost completely excluded minority residents.
The grand jury selection process at issue in this case, of course, is that for the Southern District of New York, which process was analyzed by the Second Circuit in United States v. Biaggi, 909 F.2d 662 (2d Cir. 1990), cert. denied, 499 U.S. 904, 111 S. Ct. 1102 (1991). One of the defendants in Biaggi, John Mariotta, argued that the process used in the Southern District, i.e., exclusive use of voter registration lists, unlawfully discriminated against blacks and Hispanics and violated his Fifth and Sixth Amendment rights. In Biaggi, based on 1984 census figures, blacks were underrepresented in the jury pool by 3.6 percentage points and Hispanics by 4.7 percentage points.
The Second Circuit summarily affirmed the dismissal of Mariotta's Fifth Amendment Equal Protection claim, declaring that use of voter registration lists as the sole source of prospective jurors was a "race neutral" procedure. Id. at 677. The Sixth Amendment argument was more troublesome, and the court stated that it would find the issue "extremely close if the underrepresentations had resulted from any circumstance less benign than use of voter registration lists." Id. at 678. Nevertheless, the court affirmed the district court's denial of Mariotta's Sixth Amendment claim, since the degree of underrepresentation, or the number of minority residents who would have to be added to the pool to make it an exactly fair cross-section, was not so great as to amount to a violation of the cross-section requirement. Id.
Here, Salemi relies only on a radio broadcast that purportedly reported that there was underrepresentation that had resulted from "circumstances less benign than use of voter registration lists." Salemi has provided no admissible evidence to support his allegations. Furthermore, Salemi does not specify what unconstitutional procedures were used to select the jury panel. In light of the Second Circuit's seal of approval of the exclusive use of voter registration lists in Biaggi, and in view of the complete lack of evidentiary support for his contentions, Salemi's motion must be denied.
2. The Indictment
Salemi moves for permission to inspect the grand jury minutes and for dismissal of the indictment because, allegedly, the grand jury did not review the indictment or pass upon it, and because the indictment was not duly returned in open court upon the oath of the grand jury foreperson. I have reviewed the original indictment which was in fact signed by the grand jury foreperson, who had been sworn. The government suggests that Salemi's confusion may be the result of his having received a copy of the indictment that was not signed during discovery. At any rate, the indictment was signed and sworn to, and Salemi does not provide any basis for his allegations that the indictment is defective. Accordingly, his motion is denied.
B. Speedy Trial Act
Finally, Salemi moves for release on bail pursuant to the Speedy Trial Act, 18 U.S.C. § 3164(c). The Speedy Trial Act provides that "the trial of any person [being held in detention awaiting trial] shall commence not later than ninety days following the beginning of such continuous detention," and that "no detainee . . . shall be held in custody pending trial after the expiration of such ninety-day period required for the commencement of his trial." 18 U.S.C. §§ 3164(b) and (c). A defendant will not automatically be released if trial does not commence within 90 calendar days from the indictment, however, because the Act also provides that "periods of delay enumerated in section 3161(h) are excluded in computing the time limitation specified in this section." 18 U.S.C. § 3164(b).
Section 3161(h) lists several circumstances for which time will be excluded from the 90 day computation, including delay intended to serve the ends of justice. 18 U.S.C. §§ 3161(h)(1)(F) and (8)(A). This is a 17-defendant, tri-lingual case involving copious amounts of discovery and consequently, I have granted several continuances, both at the government's and the defendants' requests, to provide the parties enough time to review discovery, consider plea agreements, and submit motions, all to serve the ends of justice. The government has calculated that, in the worse-case scenario, 54 days remain on the Speedy Trial clock. Accordingly, Salemi's motion is denied.
Defendant Ambrosio's motion to suppress the wiretap evidence is denied. His motion for release on bail is also denied. Defendant Salemi's motions to dismiss the indictment and for release are denied.
Dated: New York, New York
August 31, 1995
United States District Judge