contained in a wiretap affidavit should be read as a whole
and in a common-sense manner." Ambrosio, 898 F. Supp. at 181; see also
Gates, 462 U.S. at 230, 103 S.Ct. 2317; United States v. Ruggiero,
824 F. Supp. 379, 399 (S.D.N.Y. 1993), aff'd 44 F.3d 1102 (2d Cir.
1995). Keeping these principles in mind and after reviewing the Hessinger
affidavit, I conclude that the Hessinger affidavit provided sufficient
probable cause to believe that the targets of the electronic surveillance
were engaging in criminal activity.
First, the Hessinger affidavit recited information, given by several
confidential informants, on the target defendants' illegal activities.
The affidavit explained that three confidential sources ("CS-1," "CS-2,"
and "CS-3") reported that members and associates of organized crime
families were involved in fraudulent schemes to manipulate the price of
stocks. All three confidential sources stated that the fraudulent schemes
included extorting and threatening owners of small brokerage firms. The
confidential sources also stated that the target defendants were involved
in the schemes.
Second, the confidential informants gave very specific detail on how
the targets were effectuating the fraudulent schemes. For example, one
informant, CS-2, described a scheme termed a "clean up" operation,
pursuant to which members and associates of organized crime families would
take over a company that was in financial straits and merge it with other
companies that had been temporally infused with cash to create the facade
that the newly created company had a greater net worth than it actually
had. Once it appeared that the merged company was financially solvent,
steps were taken to trade the company's stock in the market.
Additionally, various stock brokers would be given "kickbacks" to promote
the stock and some of the defendants or their associates would purchase
the stock before the price started to go up. (Hessinger Aff. ¶ 17).
According to the informants, the stock price would then go up when the
merged company appeared to be financially sound and there appeared to be
demand for the company's stock. At that point, defendants would sell at
the higher price. They would then remove the capital from the company.
Third, investigations conducted by the FBI confirmed the veracity of
statements made by the confidential informants. For example, CS-2
revealed that Lombardo and his partner defendant Irwin Schneider "cleaned
up" a company named Global Spill Management ("GSM"). Independent
investigations revealed that on June, 1996, GSM announced its merger with
Phoenix Wrecking. According to SEC records, Begonia Co., Inc., d/b/a The
Morrison Hotel, owned two-thirds of the stock of Phoenix Wrecking and
made a $1.1 million loan to Phoenix Wrecking prior to the merger being
announced. The affidavit also revealed that when FBI agents went to the
address listed for the Morrison Hotel there were no signs of any such
hotel and they found what appeared to be a residential building.
Additionally, toll records for Lombardo's cellphone showed that he
called individuals who CS-2 stated were participants in the illegal
scheme. Toll records also revealed that Lombardo made calls to companies
that CS-2 stated were targets of the clean-up operations. (Hessinger
Aff. ¶ 48). Finally, the affidavit established that the confidential
informants had been used in the past and were reliable.
In short, the Hessinger affidavit supported Judge Jones's finding that
probable cause existed to believe that the targets were engaging in
Moreover, even assuming that the Hessinger affidavit did not establish
probable cause, the interceptions were performed in good faith reliance on
Judge Jones's order. Hence, they should not be suppressed for lack of
probable cause.*fn3 See Ambrosio, 898 F. Supp. at 186-89 (good faith
exception applies to wiretaps).
Several of the defendants claim that the government failed to
minimize and request a hearing on the matter. When
government agents are intercepting communications, pursuant to Title
III, the law does not "forbid the interception of all nonrelevant
conversations, but rather instructs the agents to conduct the
surveillance in such a manner as to `minimize' the interception of such
conversations." Scott v. United States, 436 U.S. 128, 140, 98 S.Ct.
1717, 56 L.Ed.2d 168 (1978). The government bears the initial burden of
establishing that minimization requirements were met. United States v.
Cirillo, 499 F.2d 872, 880-81 (2d Cir. 1974).
Here, the government has demonstrated that it adhered to minimization
"requirements. Before wiretap monitoring began, the government held
meetings to explain the general requirements of minimization to Joint
Organized Crime Task Force members who would be monitoring the calls.
(Gov. Wiretap Mem. at 32). Moreover, everyone who monitored
communications received, and was required to read, electronic
surveillance instructions prepared by Assistant United States Attorneys,
which were also posted at the monitoring plant. (Gov. Wiretap Mem. at
32). The instructions set out the criminal offenses that were being
investigated and stated: "You should listeri to the beginning of each
conversation only so long as is necessary to determine the nature of the
conversation . . . . If you determine that the conversation is not a
criminal conversation then turn off the machine." (Emphasis in the
original). The procedures followed by the government in this
investigation complied with minimization requirements. See United States
v. Hinton, 543 F.2d 1002, 1011 (2d Cir. 1976); United States v. Santoro,
647 F. Supp. 153, 160 (E.D.N.Y 1986); United States v. Rizzo, 491 F.2d 215,
217 (2d Cir. 1974).
Defendants make two principal arguments in response to the government's
contention that it minimized.
First, defendants point out that only a small percentage of the
intercepted calls were minimized, and they suggest that this undisputed
fact shows that the agents did not properly minimize. The fact that a
large percentage of non-pertinent communications were intercepted,
however, does not preclude a finding that the government met its
obligation to minimize. See Scott v. United States, 436 U.S. 128, 140, 98
S.Ct. 1717, 56 L.Ed.2d 168 (1978). Many of the intercepted calls lasted
less than two minutes and thus they did not need to be minimized. See
United States v. Capra, 501 F.2d 267, 275 (2d Cir. 1974) (minimization is
not required in calls — under two minutes). Additionally, where the
government is investigating a broad criminal conspiracy, the minimization
requirements are not as stringently enforced. See Scotts, 436 U.S. at
140, 98 S.Ct. 1717 ("[W]hen the investigation is focusing on what "is
thought to be a widespread conspiracy more extensive surveillance may be
justified in an attempt to determine the precise scope of the
enterprise."); see also United States v, Napolitano, 552 F. Supp. 465,
476 (S.D.N.Y. 1982). The government here was investigating racketeering,
securities fraud, extortion, loansharking, money laundering, narcotics
trafficking, and gambling.
Second, defendants argue that agents listened to conversations that
they knew to be innocent and irrelevant. Defendants' argument is without
merit. For example, some of the calls intercepted suggested that
defendants had an interest in proceeds from gambling operations:
On February 7, 1997 at 6:25 p.m., LOMBARDO spoke with
an U/M about someone, possibly a gambler, who is "into
them" for $28,000, so they have $5,000 coming. U/M
said that the person is on a winning streak, so it is
not that big a deal, but why should they let him get
used to not paying them?
(Lombardo III aff. at ¶ 44). Additionally, the intercepted calls
included discussions about shipments of "shrimp" and "coconuts," which
government agents reasonably believed were coded conversations that
actually dealt with the shipment of drugs. (Lombardo II aff. at ¶¶
58, 95 & nn. 37, 44). The government was not required to stop listening
to these conversations. See Scott 436 U.S. at 140, 98 S.Ct. 1717
(interception of communications was appropriate where the discussions