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UNITED STATES v. BELLOMO

January 17, 1997

UNITED STATES OF AMERICA, against LIBORIO BELLOMO, et al., Defendants.


The opinion of the court was delivered by: KAPLAN

 LEWIS A. KAPLAN, District Judge.

 The original indictment in this case contains sixty counts against a total of 19 defendants. The superseding indictment charges ten of those defendants with much the same offenses. This opinion disposes of the defendants' pretrial motions with respect to both indictments to the extent those motions were not resolved previously. *fn1" The matters remaining for decision include motions to (1) suppress wiretap evidence from a cellular telephone; (2) dismiss a racketeering act on the ground that it does not state an offense; (3) dismiss a racketeering act on double jeopardy or collateral estoppel grounds; (4) sever the trials of various defendants; (5) dismiss the forfeiture allegations in the indictment as to certain defendants; and (6) vacate the pretrial restraint of certain defendants' substitute assets.

 Facts

 The core of the indictments are charges under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq. ("RICO"). The enterprise is the alleged Genovese organized crime family, said to be one of the five "families" that reportedly dominate organized crime in the New York area. Twelve of the defendants, *fn2" including all ten named on the superseding indictment, are said to be members or associates of the family. They are charged in counts one and two with conspiring to conduct and conducting the affairs of the enterprise through a pattern of racketeering activity including murder, conspiracy to murder, solicitation to murder, extortion, attempted labor racketeering, operation of illegal bookmaking and gambling businesses, loansharking, money laundering, mail and wire fraud, obstruction of justice, and interstate transportation of stolen property. 18 U.S.C. §§ 1962(c), 1962(d). Other counts of the indictments charge these defendants with a wide variety of substantive offenses, all or most of which are alleged as RICO predicate acts in the first two.

 The seven other defendants are not charged with violation of RICO. Louis Ruggiero, Sr. is charged in counts nine and ten with murder and conspiracy to murder, although the murder and murder conspiracy are charged as RICO predicate acts against certain other defendants. In counts sixteen through twenty-one, Albert Setford, Colombo Saggese, Joseph Pisacano, James Pisacano, Vincent Batista, and Vincent Romano, in addition to a number of the RICO defendants, are charged with conducting illegal bookmaking businesses and/or transmitting wagering information via wire.

 Discussion

 Defendants' Motions to Suppress Communications Intercepted Over Ida's Cellular Phone

 In an order dated November 3, 1994, Honorable Milton Pollack authorized, for thirty days, the interception of communications on a cellular phone registered to a company named IPPI and used by James Ida. Judge Pollack subsequently renewed this order for another thirty days on December 7, 1994. James Ida, Liborio Bellomo and Michael Generoso move to suppress the conversations intercepted under these orders on a variety of grounds.

 Ida's Motion

 Alleged Lack of Probable Cause - Initial Application

 Ida seeks to suppress first on the ground that there was no probable cause for the issuance of the initial order.

 As an initial matter, the Court notes that Judge Pollack's determination that probable cause existed for the interceptions is entitled to substantial deference. See United States v. Wagner, 989 F.2d 69, 72 (2d Cir. 1993) ("[a] reviewing court must accord substantial deference to the finding of an issuing judicial officer that probable cause exists."). Therefore, if this Court determines that Judge Pollack had a substantial basis for his finding of probable cause, Ida's argument must be rejected. Furthermore, any doubt about the existence of probable cause will be resolved against the challenge to Judge Pollack's determination. See Illinois v. Gates, 462 U.S. 213, 237 n.10, 76 L. Ed. 2d 527, 103 S. Ct. 2317 (1983).

 Probable cause is not an especially demanding standard in this context. "'Only the probability, and not the prima facie showing, of criminal activity is the standard of probable cause.'" Id. at 235 (quoting Spinelli v. United States, 393 U.S. 410, 419, 21 L. Ed. 2d 637, 89 S. Ct. 584 (1969)). In assessing the proof presented by the government on the issue of probable cause, the court must "make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before [it], including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." Id. In other words, the government's affidavit in support of probable cause "must be read as a whole, and construed in a realistic and common sense manner, so that its purpose is not frustrated." United States v. Ruggiero, 824 F. Supp. 379, 398 (S.D.N.Y. 1993), aff'd, 44 F.3d 1102 (2d Cir. 1995) (citing United States v. Harris, 403 U.S. 573, 577-79, 29 L. Ed. 2d 723, 91 S. Ct. 2075 (1971)).

 Ida attempts to pick apart the government's presentation to Judge Pollack. However, his argument ignores the admonition of cases like Ruggiero and Gates that a court must look at the government's support for probable cause as a whole. The affidavit taken as a whole clearly provided an ample basis for Judge Pollack's finding.

 The government's affidavit established that Ida was using the cellular phone to contact members and associates of the Genovese crime family. Although the phone was registered in the name of IPPI, toll records and pen registers showed that the majority of calls from the phone were to organized crime figures, none of whom was associated with IPPI, and to Ida's family, not to commercial establishments. Furthermore, an intercepted conversation from another source showed that Ida was using the cellular phone to set up the Monday meetings of his criminal crew.

 The affidavit demonstrated substantial basis for belief that this crew was involved in numerous criminal activities including illegal gambling, loansharking, and robbery. Electronic surveillance had revealed conversations dealing with the cellular telephone targets concerning these illegal activities, and sources informed that the crew was engaged in such activity. This evidence, taken as a whole, constituted a strong showing that Ida had used, and would continue to use, the cellular phone to discuss the various criminal activities specified in the government's application.

 In addition, the affidavit adduced evidence suggesting that Ida used the phone to communicate about alleged money laundering. It gave reason to believe that Ida had income beyond his means and that he apparently used other persons' names to hide his assets. Specific incidents of Ida's apparent use of others' names in purchasing expensive items were shown, some involving James Hickey, a principal in IPPI. Furthermore, information possibly linking Hickey to previous Genovese money laundering schemes was presented. While Ida argues that IPPI was a legitimate business, the FBI's showing of Ida's suspiciously large net worth and his penchant for making large purchases in other people's names, coupled with Hickey's alleged complicity in hiding assets for Ida as well as others, established probable cause to believe that money laundering would be discussed over the cellular phone.

 Alleged Lack of Probable Cause -- First Renewal

 Ida challenges also the first renewal order authorizing the continued interception of conversations over the cellular phone. He takes issue with the evidence that the government produced to support the renewal, claiming that it all had an innocent explanation. The government counters that although the conversations, if taken alone, might be explained away, they demonstrated probable cause when looked at in context and with the aid of an expert's interpretation of their meaning.

 In addition to incorporating all of the information contained in the initial application, the affidavit executed by Agent Campi in support of the renewal referenced a number of intercepted conversations that were said to illustrate Ida's participation in the affairs of the crime family and his position of control over many of its members. Conversations in which Ida told certain crime family members to attend specific meetings suggested that Ida ran the Monday night meetings and that criminal activity was discussed in them. In addition, there were a number of intercepted communications which showed that certain Genovese family members reported to Ida intermittently.

 Other, coded conversations were said to show Ida communicating with Bellomo to set up meetings in undisclosed places to discuss, among other things, the alleged head of the Genovese crime family, Vincent "The Chin" Gigante. Several recorded conversations showed Ida discussing business affairs with Hickey in a way that suggested that the two were working out the details of money laundering operations. Finally, a number of conversations were said to show Ida discussing possible labor racketeering activities with an unidentified male.

 While the intercepted conversations, considered separately, may not be dispositive of guilt on the particular issues, that is not the relevant standard. The evidence presented in support of the renewal application was sufficient to support Judge Pollack's finding of probable cause as to the cellular phone and the allegedly criminal conversations sought to be intercepted, and so Ida's motion is denied. *fn3"

 Good Faith Exception

 Even if probable cause was lacking, the intercepted communications still would escape suppression. Under United States v. Leon, 468 U.S. 897, 82 L. Ed. 2d 677, 104 S. Ct. 3405 (1984), evidence gathered pursuant to a warrant which later is found not to have been based on probable cause need not be suppressed if the officers enforcing the warrant relied in good faith on its validity. Although Leon does not directly address electronic surveillance, numerous courts have extended its holding to such evidence. See United States v. Moore, 41 F.3d 370, 376 (8th Cir. 1994), cert. denied, 131 L. Ed. 2d 872, 115 S. Ct. 1985 (1995); United States v. Malekzadeh, 855 F.2d 1492, 1497 (11th Cir. 1988), cert. denied, 489 U.S. 1024, 103 L. Ed. 2d 209, 109 S. Ct. 1149 (1989); United States v. Ambrosio, 898 F. Supp. 177, 187 (S.D.N.Y. 1995); United States v. Milan-Colon, 1992 U.S. Dist. LEXIS 13791, 1992 WL 236218, at *22, *24 (S.D.N.Y. 1992); United States v. Gambino, 741 F. Supp. 412, 414-15 (S.D.N.Y. 1990); but see United States v. McGuinness, 764 F. Supp. 888, 897 n.2 (S.D.N.Y. 1991). This Court sees no principled basis for distinguishing electronic surveillance from other searches and seizures in this respect and therefore agrees that Leon applies in these circumstances.

 Under Leon, evidence obtained pursuant to a warrant which later is found to have been issued without probable cause will be suppressed only if: (1) the issuing judge abandoned his detached, neutral role; (2) the agent was dishonest or reckless in preparing the supporting affidavit for the wiretap order; or (3) the agents' reliance on the warrant was not reasonable. See Leon, 468 U.S. at 922-25.

 Ida does not rely on the first Leon prong. Rather, he maintains that since probable cause for the warrants so obviously was lacking, the government was reckless in preparing affidavits which maintained that there was probable cause. He makes no allegation that the government included false facts in the affidavit either intentionally or recklessly.

 The government's reliance on an order based on the extensive and persuasive showing of probable cause laid out in Agent Campi's affidavits and accepted by Judge Pollack can not be characterized as unreasonable, even if a court later were to determine that probable cause was lacking. Ida has not demonstrated any lack of good faith on the part of the government. This Court therefore finds that even if probable cause was lacking in the initial and renewal applications presented to Judge Pollack, the good faith exception in Leon would compel this Court to deny suppression of the evidence.

 Alternative Means of Investigation

 Ida claims also that the government failed to demonstrate the inadequacy of alternative investigative means for obtaining the information sought through the wiretap and that its application therefore was insufficient.

 As a predicate to approving a wiretap application, a judge must determine that "normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed or to be too dangerous." 18 U.S.C. § 2518(3)(c). This is far from an insurmountable hurdle. The government must demonstrate only that normal investigative techniques would prove difficult. It need not show that any other option would be doomed to failure. As the Second Circuit has explained:

 
"the purpose of the statutory requirements is not to preclude resort to electronic surveillance until after all other possible means of investigation have been exhausted by investigative agents; rather, they only require that the agents inform the authorizing judicial officer of the nature and progress of the investigation and of the difficulties inherent in the use of normal law enforcement methods." United States v. Torres, 901 F.2d 205, 231 (2d Cir.), cert. denied, 498 U.S. 906, 112 L. Ed. 2d 229, 111 S. Ct. 273 (1990).

 "A reasoned explanation, grounded in the facts of the case, and which 'squares with common sense, is all that is required.'" United States v. Ianniello, 621 F. Supp. 1455, 1465 (S.D.N.Y.), aff'd 808 F.2d 184 (2d Cir. 1985) (quoting United States v. Shipp, 578 F. Supp. 980, 989 (S.D.N.Y. 1984) (Weinfeld, J.), aff'd sub nom. United States v. Wilkinson, 754 F.2d 1427 (2d Cir.), cert. denied, 472 U.S. 1019, 87 L. Ed. 2d 617, 105 S. Ct. 3482 (1985)). Additionally, like the issuing judge's determination of probable cause, a determination that the government has made this showing is entitled to substantial deference from a reviewing court. See id.

 Ida claims that the government's affidavits failed to make this showing because the government had alternative methods with which to observe the Monday night meetings. He contends that the government's claims that it had used all available means of investigation were mere boilerplate that was not sufficient to satisfy the requirements of the statute.

 Ida's argument incorrectly assumes that observation of the meetings was the purpose of the wiretap. The wiretap, however, was sought and authorized in order to allow law enforcement officers to intercept conversations regarding certain criminal activity that it believed would take place over Ida's cellular phone. A probable cause showing was made to justify such interceptions. The alternative methods that Ida proposes for surveilling the Monday night meetings would not have aided the government's attempts to hear telephone conversations discussing illegal conduct. The wiretap application was necessary so that this investigative aim could be achieved, and no other technique would have served the same purpose.

 Ida's attack on the government's affidavit is equally unavailing. The affidavit describes with specificity a number of other possible techniques that the government might have employed in its efforts and why those techniques probably would not have been effective. It may have been similar in this respect to affidavits presented in support of other applications in this case, but that similarity did not render its language ineffective. Many of the reasons presented by Agent Campi for the authorization of the wiretap are of particular relevance to the Genovese crime family and similar organizations, such as their consciousness of surveillance and the fear of informants to testify. It should come as no surprise that the facts supporting the conclusion that the alternative methods would be unavailing were similar from application to application.

 For the reasons explained above, Ida's various arguments for suppression of the evidence intercepted from his cellular phone lack merit. His motion therefore is denied in all respects.

 Bellomo and Generoso -- Motions to Suppress

 Defendants Bellomo and Generoso also move for suppression of conversations intercepted from the Ida Cellular phone, arguing that the initial application and its various renewals lacked probable cause.

 Standing

 As a threshold mater, Bellomo lacks standing to make this motion as to the initial wiretap application. This Court held, in United States v. Montoya-Eschevarria, 892 F. Supp. 104, 106 (S.D.N.Y. 1995), and in its December 27, 1996 Order in regard to other suppression motions by Ida and Generoso, that a defendant who was not a named target or interceptee of a wiretap must submit proof by affidavit that he or she was overheard on the wiretap in order to establish standing to seek suppression of such evidence. Bellomo does not admit that he was intercepted on Ida's cellular phone. He was neither a target 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.

 Probable Cause

 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. *fn4" 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. *fn5" 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 ...


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