nor a named interceptee in the initial application. The disputed allegations of the government, or the claim by his attorney that Bellomo often spoke with Ida on the phone, do not establish a sufficient interest in the interceptions for Bellomo to have standing. He must establish that his voice was intercepted. Absent a sworn statement by Bellomo or someone with personal knowledge averring that Bellomo's voice was intercepted on the cellular phone, he lacks standing to seek suppression of the evidence that the wiretap on that phone produced. Bellomo's motion to suppress the fruits of the initial order therefore is denied.
Bellomo and Generoso argue that they are entitled to suppression of the intercepts involving the Ida cellular phone because the government, although it named them as targets in most of the applications, in fact lacked probable cause to believe that they had committed or were about to commit any offense.
The government does not now contend that it demonstrated probable cause with respect to Bellomo or Generoso. Rather, its position is that the Fourth Amendment and the statute require, in the relevant respect, only that there be probable cause with respect to its belief that at least one of the individuals named in the order has committed or is about to commit an offense.
As there was probable cause to believe that Ida had committed or was about to commit an offense, the government argues, any lack of probable cause as to Bellomo, Generoso or anyone else named in the application is immaterial.
A logical starting point is the statute, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-20. In brief summary, Title III requires that an application for authority to intercept electronic communications contain, among other things, "the identity of the person, if known, committing the offense and whose communications are to be intercepted . . ." 18 U.S.C. § 2518(b)(iv). A judge may authorize interception upon a determination, insofar as is relevant here, that "there is probable cause for belief that an individual is committing, has committed or is about to commit" a relevant offense. Id. § 2518(3)(a). The authorizing order shall specify, among other things, "the identity of the person, if known, whose communications are to be intercepted . . ." Id. § 2518(4)(a). Within 90 days after the application is made, the judge shall cause a notice to be given to "the persons named in the order or the application, and such other parties to intercepted communications as the judge may determine . . ." Id. § 2518(8)(d). An "aggrieved person" may move to suppress an communication intercepted pursuant to Title III on the grounds, among others, that the communication was unlawfully intercepted or the order of authorization was insufficient on its face. Id. § 2518(10).
The statutory scheme thus makes clear, as the Supreme Court confirmed in United States v. Kahn, 415 U.S. 143, 39 L. Ed. 2d 225, 94 S. Ct. 977 (1974), that the government's obligation to name persons in Title III applications is limited to those who, it has probable cause to believe, committed or are about to commit an offense. The government need not seek to discover and name all those who may be overheard.
The next question that logically occurs is as to the consequence, if any, of the government's failure to name in an application a person as to whom probable cause exists. The Court answered that question in United States v. Donovan, 429 U.S. 413, 50 L. Ed. 2d 652, 97 S. Ct. 658 (1977). Reasoning that the naming requirement of Section 2518(1)(b)(iv) does not play "a central, or even functional role in guarding against unwarranted use of wiretapping or electronic surveillance," the Court held that suppression is not required in such circumstances. Id. at 437-40 (quoting United States v. Chavez, 416 U.S. 562, 578, 40 L. Ed. 2d 380, 94 S. Ct. 1849 (1974) (internal quotation marks omitted)). While Donovan is not dispositive here because this case is its converse, its conclusion with respect to the significance of the naming requirement does tend to suggest that the mistaken naming of a person in an application does not warrant suppression. This is confirmed by the cases that have dealt with the issue.
In United States v. Shipp, 578 F. Supp. 980, Judge Weinfeld rejected substantially the same argument made by Bellomo and Generoso here. Stitmon, one of the movants, sought suppression on the ground that there was no probable cause to believe that he was involved with the suspected criminal activity of another target of the interceptions. Id. at 984, 986. But Judge Weinfeld denied the motion on the ground that it misstated the requirements of probable cause. He pointed out that "there is no requirement that probable cause be established with respect to every defendant ultimately indicted" and that the probable cause requirement in the wiretap context is "satisfied by identification of the telephone line to be tapped and the particular conversations to be seized." Id. at 986-87 & n. 18.
Other cases are to the same effect. In United States v. Martin, 599 F.2d 880 (1979), the Ninth Circuit affirmed the denial of a motion to suppress that was based on the contention that a Title III applicant must establish probable cause as to every probable interceptee, holding that neither the Fourth Amendment nor Title III imposes any such requirement. Id. at 884-85. Several other judges of this Court have reached the same conclusion. United States v. Ambrosio, 898 F. Supp. 177, 183-85 (S.D.N.Y. 1995); United States v. Milan-Colon, 1992 U.S. Dist. LEXIS 13791, No. S2, S3 91 Cr. 685 (SWK), 1992 WL 236218, at * 16 (S.D.N.Y. Sept. 8, 1992); United States v. McGuinness, 764 F. Supp. at 899-900.
This is an entirely sensible result. The Supreme Court already has held in Donovan that the failure to name in a Title III application a person as to whom the government has probable cause does not require suppression. As the shelves of reported cases dealing with the issue in a myriad of factual contexts demonstrates, the question whether probable cause exists in particular circumstances often is an exceedingly close judgment as to which reasonable minds may differ. By requiring suppression if the government mistakenly characterizes as probable cause its showing as to a particular interceptee, the courts would provide an incentive for the government to call all the close cases against naming the individual, as it thereby would ensure admissibility by the omissions, at least if the omissions were reasonable. This would disserve the interests the statute was designed to serve because the effect of the omission would be that the interceptee whose name was omitted would not be entitled, as a matter of right, to the notice contemplated by Section 2518(8)(d). See Martin, 599 F.2d at 885; Ambrosio, 898 F. Supp. at 184.
Accordingly, the motions of Bellomo and Generoso to suppress the product of the Ida cellular telephone intercepts on the ground that the government lacked probable cause to believe that they had engaged or were about to engage in criminal activity are denied.
Bellomo's Request for a Franks Hearing
Bellomo asks also that the Court grant a hearing under Franks v. Delaware, 438 U.S. 154, 171-72, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978), to determine whether Bellomo was misidentified as one of the persons intercepted over Ida's cellular phone. To warrant a Franks hearing, a defendant must make a "substantial preliminary showing" that the misidentification arises from the identifying agents "deliberate falsehood or . . . reckless disregard for the truth." Id.
Bellomo has offered an affidavit by one of his attorneys who, after an "in-depth firsthand examination of the tapes on which Bellomo's voice purportedly appears," claims that the government's identification of Bellomo is incorrect. (Bellomo Reply Mem. 11-12) Bellomo argues that since his lawyer swears that Bellomo was misidentified, and since his misidentification allegedly was critical to a determination of probable cause, he is entitled to a hearing to determine whether the identifying agent was reckless.
The opinion of Bellomo's attorney that the voice on the tape is not Bellomo's, even if correct, is not enough to raise an issue of fact as to whether the agent deliberately or recklessly identified Bellomo. Absent some other evidence, there is no reason to believe that any error, if error there was, was anything but a mistake insufficient to raise a Franks problem.
Ida's Motion to Dismiss Racketeering Act 7(a)
Racketeering Act 7(a) in the RICO counts alleges that defendant James Ida and others committed extortion by:
"obtaining property, that is, the right of a labor organization's members to free speech and democratic participation in union affairs . . . and to loyal and responsible representation by the members' union officers . . . from and with the consent of officers and employees of [said union] which consent would have been and was induced by the wrongful use of actual and threatened force, violence, and fear . . . ."
in violation of the Hobbs Act.
Ida seeks to have Racketeering Act 7(a) dismissed on the ground that the union members' rights are not "property" within the meaning of Section 1951(b)(2) and so his alleged actions do not state a violation of the statute.
Ida's argument is flatly contrary to the established law in this Court. Every judge in this district to consider the matter has found that union members' rights to free speech and democratic participation in union affairs are property for the purposes of the Hobbs Act. See United States v. Local 1804-1, 812 F. Supp. 1303, 1335 (S.D.N.Y. 1993), aff'd in part, 52 F.3d 1173 (2d Cir. 1995), cert. denied, 116 S. Ct. 934 (1996); United States v. District Council of New York City, 778 F. Supp. 738, 754 (S.D.N.Y. 1991); United States v. International Brotherhood of Teamsters, 765 F. Supp. 1206 (S.D.N.Y. 1991), appeal dismissed, 1991 WL 346072 (2d Cir. 1991), cert denied, 502 U.S. 1075, 117 L. Ed. 2d 139, 112 S. Ct. 975 (1992); Rodonich v. Local 95, 627 F. Supp. 176, 178-79 (S.D.N.Y. 1985). So too have the Third and Sixth Circuits. See United States v. Debs, 949 F.2d 199, 201-02 (6th Cir. 1991); United States v. Local 560, 780 F.2d 267, 281-82 (3d Cir. 1985).
Ida presents no directly contrary authority. Rather, he contends that language in Town of West Hartford v. Operation Rescue, 915 F.2d 92 (2d Cir. 1990), in which the Court of Appeals said that "the term 'property' cannot plausibly be construed to encompass altered official conduct" for Hobbs Act purposes, id. at 102, requires the conclusion he advocates. (Ida Reply Mem. 11) He contends too that this result is required by McNally v. United States, 483 U.S. 350, 97 L. Ed. 2d 292, 107 S. Ct. 2875 (1987).
The plaintiffs in Town of West Hartford contended, inter alia, that the defendants, in violation of the Hobbs Act, "extorted" a softer municipal reaction to their protest activities by the threat, among others, that an unaltered municipal policy would require added police expenditures by the town and restrict its ability to provide police protection for other citizens. 915 F.2d at 95-96, 102. The comment relied upon by Ida came in the court's rejection of that claim. The court went on to say that "virtually any conduct that elicits a governmental response will require activity by . . . salaried government employees" and that "it is simply not tenable to translate the activation of such a response into a Hobbs Act obtention of 'property.'" Id. at 102.
The Circuit's holding in Town of West Hartford was a response to an argument, the logical implication of which would have transformed into a violation of the Hobbs Act almost any conduct which required a governmental body to consider that a response other than that which actually occurred might be more expensive. The Court explicitly adverted to the First Amendment difficulties that such a view might raise. Id. at 102. The decision therefore turned on the special difficulties of applying the Hobbs Act in the public context. It cannot be applied uncritically outside that context, as indeed is suggested by the fact that the Court reiterated its prior holding that "'property' under the Act 'includes, in a broad sense, any valuable right considered as a source or element of wealth . . .'" Id. at 101 (quoting United States v. Tropiano, 418 F.2d 1069, 1075-76 (2d Cir. 1969), cert. denied, 397 U.S. 1021, 25 L. Ed. 2d 530, 90 S. Ct. 1262 (1970)).
This case presents a fundamentally different situation. Unions are not governmental bodies. Their members' rights to participate effectively in their affairs have direct economic value because the advancement of the members' economic interests through collective action is the raison d'etre of unions. The history of labor corruption in this country is an eloquent testament to the proposition that the suppression of union democracy often has been closely linked with the sacrifice of the interests of the rank and file to the enrichment of union leaders and those who have corrupted them. Thus, unlike the interest in unaltered official conduct that was put forward in West Hartford, the interests at stake in this case, although intangible, are very similar to the intangible economic rights held to be property in cases cited by the West Hartford panel. They are, to quote Tropiano, "valuable right[s] considered as a source . . . of wealth . . ." 418 F.2d at 1075-76.
Ida next argues that the Supreme Court's decision in McNally -- which held that the term "property" as used in the mail fraud statute, 18 U.S.C. § 1341, does not include "the intangible right of the citizenry to good government," 483 U.S. at 356
-- requires the conclusion that Racketeering Act 7(a) does not state an offense. The argument assumes, of course, that the term "property" as used in the mail fraud statute has the same meaning as in the Hobbs Act, a debatable proposition in view of the different histories of the two statutes. See Debs, 949 F.2d at 201 n.2; cf. McNally, 483 U.S. at 356-58. Even granting that assumption, however, the result that Ida advocates does not necessarily follow for substantially the reasons already discussed -- the link between tangible economic benefits and the free exercise of union members' rights is considerable stronger than that between such readily recognizable "property" and the honest services of public officials.
In all the circumstances, this Court sees no reason to depart from the considered and established interpretation which courts universally have given to the term "property" in the Hobbs Act. Racketeering Act 7(a) therefore is legally sufficient. Ida's motion is denied.
Schenone's Motion to Dismiss Racketeering Act 32 or for Other Relief
Count one of the indictments alleges a conspiracy to conduct the affairs of the alleged enterprise through a pattern of racketeering activity in violation of 18 U.S.C. § 1962(d). Count two alleges that specified defendants actually conducted the affairs of the alleged enterprise through a pattern of racketeering in violation of 18 U.S.C. § 1962(c). Racketeering Act 32, which is incorporated in counts one and two in the original indictment (Racketeering Act 35 of counts one and two of the superseding indictment), alleges that:
"It was a part of the pattern of racketeering activity that from on or about November 1, 1994, through in or about April 1995, in the Southern district of New York and elsewhere, James Ida . . . , and John Schenone . . . , and others known and unknown, unlawfully, willfully, and knowingly did transport in interstate and foreign commerce a good, namely, a Caterpillar 950B Front End Loader, having a value in excess of $ 5,000, knowing the same to have been stolen and converted, in violation of Title 18, United States Code, Sections 2314, and 2."