Thus, the use of the pen register provides no grounds to suppress the evidence obtained from the court-authorized wiretaps of the target telephone number.
Elson also contends that there was insufficient probable cause to justify the wiretap authorized by Judge Patterson. A court can authorize a wiretap on the basis of facts submitted by the applicant showing that there was probable cause to believe "(a) that an individual was committing, had committed, or was about to commit and offense enumerated in 18 U.S.C. § 2516 . . . (b) that particular communications concerning the offense would be obtained through such interception, and (c) that the facilities to be surveilled were being used or were about to be used in connection with the commission of such an offense." United States v. Biaggi, 853 F.2d 89, 95 (2d Cir. 1988), cert. denied, 489 U.S. 1052, 103 L. Ed. 2d 581, 109 S. Ct. 1312 (1989) (internal citations omitted); see also 18 U.S.C. § 2518(3).
In deciding whether there was probable cause, the Court should make a practical common-sense determination based on the totality of the circumstances. United States v. Wagner, 989 F.2d 69, 71-72 (2d Cir. 1993) (citing Illinois v. Gates 462 U.S. 213, 238, 76 L. Ed. 2d 527, 103 S. Ct. 2317 (1983)). "[A] reviewing court will defer to the issuing court's determination that there was probable cause as long as there existed a substantial basis for a magistrate or judge to conclude that a search would uncover evidence of wrong-doing." Biaggi, 853 F.2d at 95 (internal citations and quotations omitted); see also Wagner, 989 F.2d at 71-72.
Special Agent Massimi's Affidavit describes several purchases of narcotics that were made from Moysif. The Affidavit then describes the numerous telephone calls made to the target telephone number by Moysif to discuss meetings, deadlines and payments. In the Affidavit, Special Agent Massimi sets forth a substantial basis for believing that these conversations concerned the sale of narcotics, despite the absence of overt references to drugs. These conversations were followed by at least one additional purchase of narcotics by the UC from Moysif. (Massimi Aff. at P86). Special Agent Massimi's Affidavit, considered in its entirely, provided a reasonable basis to believe drug transactions were occurring, that the target telephone number was being used in such transactions by the identified individuals, and that a wiretap of the target telephone number would intercept conversations regarding narcotics trafficking. Thus, especially given the deference afforded Judge Patterson's determination that probable cause existed, there are no grounds to suppress the evidence gained from this wiretap.
Finally, Elson seeks to suppress the tapes generated by the wiretap based on the Government's alleged failure to meet the requirements of 18 U.S.C. § 2518(1)(c). Section 2518(1)(c) requires, as a precondition for obtaining a wiretap authorization, that the Government sufficiently provide to the issuing judicial officer "a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous." To satisfy this requirement "there is no requirement 'that any particular investigative procedures be exhausted before a wiretap may be authorized.'" United States v. Young, 822 F.2d 1234, 1237 (2d Cir. 1987) (quoting United States v. Lilla, 699 F.2d 99, 104 (2d Cir. 1983)).
In his Affidavit, Special Agent Massimi described the investigative techniques the Government had already employed and explained why electronic surveillance was required. Special Agent Massimi explained that the Government had already used an undercover agent, a confidential informant, physical surveillance and other forms of monitoring. Special Agent Massimi then detailed the problems with the use of other investigative techniques in the context of this investigation. The information Special Agent Massimi provided is similar to the showing other courts have found satisfies the requirements of 18 U.S.C. § 2518(1)(c).
For example, Special Agent Massimi explained that intensive physical surveillance or the use of search warrants would likely alert the subjects of the investigation that they were being monitored. See Young, 822 F.2d at 1237; United States v. Ruggiero, 726 F.2d 913, 924 (2d Cir.), cert. denied, 469 U.S. 831 (1984). He further stated that telephone toll records and pen registers were insufficient because they could not show what the subjects discussed or who participated in the conversations. See United States v. Torres, 901 F.2d 205, 232 (2d Cir. 1990), cert. denied, 498 U.S. 906 (1990); Young, 822 F.2d at 1237. Massimi also stated that the UC was only of limited use because those engaged in narcotics trafficking protect themselves by not disclosing the details of their business to people outside their own operation. See United States v. Puglisi, 790 F.2d 240, 242 (2d Cir.), cert. denied, 479 U.S. 827, 93 L. Ed. 2d 55, 107 S. Ct. 106 (1986); Ruggiero, 726 F.2d at 924.
The information provided by Special Agent Massimi sufficiently described to the judicial officer authorizing the wiretap the investigative steps already used and adequately demonstrated the need for electronic surveillance. Moreover, Judge Keenan previously found that this very wiretap satisfied the requirements of 18 U.S.C. § 2518(1)(c). ( United States v. Podlog, 92 Cr. 374 (JFK), S.D.N.Y. January 21, 1993, attached as GX 3). Thus, the Government's wiretap application satisfied the requirements of 18 U.S.C. § 2518(1)(c), and Elson's motion to suppress the tapes on this ground, like the other two grounds discussed above, is denied.
Finally, the defendant moves, pursuant to Federal Rule of Criminal Procedure 7(d), to strike the portions of the Indictment he alleges are prejudicial surplusage. Specifically, Elson moves to strike the references in the Indictment to "Monya's Brigada" and to his alleged aliases, specifically the use of the nickname "Kishinevsky."
"Motions to strike surplusage from an indictment will be granted only where the challenged allegations are 'not relevant to the crime charged and are inflammatory and prejudicial.'" United States v. Scarpa, 913 F.2d 993, 1013 (2d Cir. 1990) (quoting United States v. Napolitano, 552 F. Supp. 465, 480 (S.D.N.Y. 1982)). "'If evidence of the allegation is admissible and relevant to the charge, then regardless of how prejudicial the language is, it may not be stricken.'" Scarpa, 913 F.2d at 1013 (quoting United States v. DePalma, 461 F. Supp. 778, 797 (S.D.N.Y. 1978)) (alteration in original).
In this case, the Government asserts that the term "Monya's Brigada" is relevant to the charge because it identifies the RICO "enterprise" in which the defendant is alleged to have been involved. In addition, the Government argues that the reference to the alias "Kishinevsky" in the Indictment is appropriate because this alias will be used in the Government's proof at trial.
Courts have consistently refused to strike language in indictments that identified the name of the criminal enterprise, see Scarpa, 913 F.2d at 1013; Napolitano, 552 F. Supp. at 480, finding it relevant to proving charges brought under RICO. Similarly, aliases and nicknames should not be stricken from an Indictment when evidence regarding those aliases or nicknames will be presented to the jury at trial. See United States v. Ianniello, 621 F. Supp. 1455, 1479 (S.D.N.Y. 1985); Persico, 621 F. Supp. at 861. Thus, the references to "Monya's Brigada" and to Elson's alias, should not be stricken pursuant to Rule 7(d).
The defendant's motion to transfer venue, or in the alternative to sever a portion of the Indictment and transfer prosecution of those charges is denied. The defendant's motion to dismiss Counts One and Two of the Indictment is denied. The defendant's motion to suppress tape recordings is denied. The defendant's motion to strikes alleged "surplusage" from the Indictment is denied.
Dated: New York, New York
June 16, 1997
John G. Koeltl
United States District Judge