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U.S. v. GOTTI

March 16, 1999

UNITED STATES OF AMERICA,
v.
JOHN A. GOTTI, DOMINICK LOIACONO, VINCENT ZOLLO, ANTHONY PLOMITALLO, MICHAEL ZAMBOUROS, AND DENNIS MCCLAIN, DEFENDANTS.



The opinion of the court was delivered by: Barrington D. Parker, Jr., District Judge.

            OPINION AND ORDER

Currently before this Court are the omnibus pretrial motions of defendants John A. Gotti, Dominick Loiacono, Vincent Zollo, Anthony Plomitallo, Michael Zambouros, and Dennis McClain who are charged in various counts of the Indictment with, inter alia, racketeering, conspiracy, extortion, wire fraud, extortion in telecommunications and gambling.

In these motions which, in large part, challenge various aspects of the investigations that culminated in the indictments, the defendants seek to suppress evidence allegedly obtained as the result of illegal electronic surveillance, invalid warrants, and unconstitutional searches. In addition, defendants challenge the sufficiency of the Indictment in a number of respects and seek discovery beyond what has already been provided by the Government. What follows is this Court's resolution of the motions.

I. SUPPRESSION OF WIRETAP EVIDENCE BASED ON LACK OF PROBABLE
  CAUSE*fn1

The following are the various eavesdropping authorizations which Gotti contends were issued without probable cause:*fn2

  -------------------------------------------------------------------------------------------------------------
    DATE                         AUTHORIZED BY                 SUBJECT OF                         SUPPORTING
                                                               AUTHORIZATION                      AFFIDAVIT
  -------------------------------------------------------------------------------------------------------------
    December 20, 1995            Honorable Sondra              Authorization of interception      Special
                                 Miller, Appellate Division,   of telephone                       Investigator
                                 Second                        conversations                      Pasquale
                                 Department                    at City Auto Salvage               Perrotta
                                                               relating to
                                                               gambling
    January 18, 1996             Justice Miller                Extension and                      Special
                                                               amendment to include               Investigator
                                                               interception of                    Ercole
                                                               conversations relating             Gaudioso
                                                               to criminal usury,
                                                               coercion, grand
                                                               larceny by extortion
                                                               and conspiracy
    February 15, 1996            Justice Miller                Extension                          Special
                                                                                                  Investigator
                                                                                                  Gaudioso
    March 14, 1996               Justice Miller                Extension                          Special
                                                                                                  Investigator
                                                                                                  Gaudioso
    April 25, 1996               Justice Miller                Amendment to authorize             Special
                                                               interception                       Investigator
                                                               of conversations                   Gaudioso
                                                               over Plomitallo's
                                                               home telephone and
                                                               within a 1987
                                                               Mercury
 
  -------------------------------------------------------------------------------------------------------------
    May 10, 1996                 Justice Miller                Extension and                      Special
                                                               amendment to discontinue           Investigator
                                                               interception                       Gaudioso
                                                               within 1987
                                                               Mercury
    May 17, 1996                 Justice Miller                Amendment to authorize             Special
                                                               interception                       Investigator
                                                               within 1987                        Gaudioso
                                                               Mercury
    June 6, 1996                 Justice Miller                Extension and                      Special
                                                               amendment to authorize             Investigator
                                                               interception                       Gaudioso
                                                               of conversations
                                                               over Gotti's home
                                                               telephone and within
                                                               a 1996 Jeep
    June 26, 1996                Justice Miller                Amendment to authorize             Special
                                                               interception                       Investigator
                                                               of telephone at                    Gaudioso
                                                               Sutphin Boulevard
    July 3, 1996                 Justice Miller                Extension and                      Special
                                                               amendment to authorize             Investigator
                                                               interception                       Gaudioso
                                                               of telephone at
                                                               Sutphin Boulevard
  -------------------------------------------------------------------------------------------------------------

DISCUSSION

18 U.S.C. § 2518 sets out the procedures governing the authorization of wiretaps. Section 2518(3) requires a judicial determination that: (1) there is probable cause to believe that a particular type of crime has been, is being, or is about to be committed, (2) there is probable cause to believe that particular communications concerning the crime will be obtained through the wiretapping, (3) normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed or unfeasible, and (4) there is probable cause to believe that the phones to be tapped are being used for criminal purposes or by the target of the wiretap. 18 U.S.C. § 2518(3); United States v. Wagner, 989 F.2d 69, 71 (2d Cir. 1993); United States v. Ambrosio, 898 F. Supp. 177, 180 (S.D.N.Y. 1995).

Probable cause to authorize a wiretap "is established if the `totality of the circumstances' contained in the affidavit indicates a probability of criminal activity and that evidence of the criminal activity could be obtained through the use of electronic surveillance."*fn3 Ambrosio, 898 F. Supp. at 181. The issuing judicial officer must "make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the `veracity' and `basis of knowledge' of persons supplying hearsay information, there is fair probability that . . . evidence of a crime will be found." Gates, 462 U.S. at 238, 103 S.Ct. 2317.

Orders authorizing the interception of wire communications are entitled to a presumption of validity. Therefore, substantial deference is afforded the issuing judicial officer's determination of probable cause, Ambrosio, 898 F. Supp. at 181 (citations omitted), and doubts as to the existence of probable cause must be resolved in favor of the prior judicial authorization. Gates, 462 U.S. at 237 n. 10, 103 S.Ct. 2317. Consequently, this Court's review is not de novo but is limited to determining whether that judicial officer had a "substantial basis" for her determination. Wagner, 989 F.2d at 72 (citing Gates, 462 U.S. at 236, 103 S.Ct. 2317). Stated another way, "[u]naided by the insights of adversarial scrutiny, the issuing judge may not readily perceive every question that might legitimately be raised regarding a requested surveillance; but so long as fundamental constitutional rights are preserved, the issuing court's determination should not be subjected to gratuitous `Monday morning quarterbacking'". United States v. Gigante, 979 F. Supp. 959, 963 (S.D.N.Y. 1997).

In approving the December 20, 1995 warrant application, Justice Miller concluded that the affidavits submitted to her provided probable cause to believe that the telephone at City Auto facilitated communications between Gotti and his subordinates and that the interceptions authorized would generate information concerning specified criminal activity. Based on December 20, 1995 application, Justice Miller authorized the interception of gambling related communications of the following type:

  the identities of co-conspirators; locations where
  gambling occurs and where gambling proceeds and
  gambling records are safeguarded; methods by which
  proceeds are secreted and disbursed to the principals
  of the enterprise; . . . conversations relating to
  the acceptance of policy wagers, the money accepted
  for, and the records of, those wagers; . . . the
  coordination of meetings to pay and collect monies,
  and to discuss and further illegal gambling.*fn4

Gotti asserts that the affidavits comprising the December 20 application did not establish probable cause because they contained an insufficient showing that the City Auto phone would be used by the targeted individuals, that Gotti was linked to the illegal activity there, or, for that matter, that the phone was ever used to facilitate gambling.

In support of his claim, Gotti invites the Court to follow his lead in evaluating in isolation discrete allegations in the affidavits, and to conclude that deficiencies with various specific allegations mean that the affidavits, taken as a whole, do not establish probable cause. This approach, however, is flawed, since it is well-established that the allegations contained in a wiretap affidavit should be read in their entirety and in a common-sense manner with each fact gaining color from the others. United States v. Ruggiero, 824 F. Supp. 379, 399 (S.D.N.Y. 1993), aff'd sub nom., United States v. Aulicino, 44 F.3d 1102 (2d Cir. 1995) (citing United States v. Monica, 295 F.2d 400, 401 (2d Cir. 1961), cert. denied, 368 U.S. 953, 82 S.Ct. 395, 7 L.Ed.2d 386 (1962)). Ambrosio, 898 F. Supp. at 181; see United States v. Bellomo, 954 F. Supp. 630, 638 (S.D.N Y 1997) ("While the intercepted conversations, considered separately, may not be dispositive of guilt on the particular issues, that is not the relevant standard.").

With these principles in mind, the Court now reviews the applications in question. They detail the results of years of investigation yielding information concerning the alleged Gambino Crime Family, its existence, its activities, its members and its methods of operation. Were this extensive background information ignored by Justice Miller, probable cause for the interceptions in question quite possibly would not exist. This background information, however, cannot be discounted since it provides a necessary and quite proper context for understanding activities and conversations that by themselves might be innocent or innocuous. Once these principles are applied, the Court concludes that probable cause for the challenged interceptions was documented, although the issue is not free from difficulty.

The Perrotta Affidavit submitted in support of the December 20, 1995 application was divided into six parts. Part I described the structure of the alleged Gambino Family and explained the general rule that subordinates must receive permission from their superiors to engage in criminality and are required to share proceeds with their superiors. Part II identified the targets of the investigation, and specified that Craig DePalma (a former defendant in this case) was a soldier in the crew headed by "capo" Gotti. Part III outlined the evidence of illegal gambling collected to date establishing that evidence of meetings involving the group's leaders and members would show the existence of the gambling conspiracy. Part IV outlined the evidence of loansharking. Part V outlined the targets' use of labor organizations to commit extortion. Part VI outlined the evidence of the conspirators' membership in the Gambino Family, their subordinate status to Gotti, their pattern of meeting with him and their use of phones to coordinate illegal activities. Part VI also identified the Bergin Hunt and Fish Club ("Bergin Club") as a social club that was a traditional meeting place for members of the Gambino organization.

The application also incorporated three previous warrants which had been issued by: (1) Acting State Supreme Court Justice Joseph K. West on August 12, 1994, and extended through June 10, 1995, (2) the Honorable Joseph P. Sullivan of the Appellate Division, First Department, on September 27, 1994, and extended through December 22, 1994, and (3) Justice West on June 6, 1995, and extended through December 20, 1995.

In discussing the telephone at City Auto, the Perrotta Affidavit established that Gotti's home telephone was used on 32 occasions between August 28, 1995 and October 25, 1995 to contact City Auto. The pager of former co-defendant Craig DePalma received at least 17 pages between September 22, 1995 and December 18, 1995 from the telephone at City Auto. The Affidavit further stated that eavesdropping over DePalma's cellular phone indicated that these calls between the instruments consisted of cryptic discussions with unnamed other persons regarding meetings at future, unspecified times. This section also included an example of City Auto's owner Michael McLaughlin (identified in the Affidavit as a close associate of Gotti) using the telephone to transfer a message from Gotti to DePalma. For example, McLaughlin informed DePalma that "he" wanted McLaughlin to ask DePalma to obtain five tickets to a show "for his sister," indicating that the tickets were needed for "the three boys, Carmine and her." Gotti's sister is married to Carmine Agnello. The section of the Affidavit concerning the telephone at City Auto also averred that the phone was used by DePalma and others to coordinate and discuss meetings with Gotti.

Interceptions such as these establishing the structure, membership and functioning of an illicit enterprise were properly a potential target of interceptions as a source of evidence of particular forms of racketeering such as gambling. Contrary to Gotti's submission, Justice Miller was not invited to consider in isolation the nature, content and frequency of the communications adverted to in these affidavits, but rather to consider them in the context of averments that they showed the operation of an organized criminal operation.

The Gaudioso Affidavit submitted in support of the January 18, 1996 extension and amendment starts by describing how the existence, structure and modus operandi of the alleged Gambino Family are related to the criminal operations under investigation. The Affidavit then outlines several phone calls intercepted over City Auto's telephone line, and indicates that interception has provided evidence of assistance provided by McLaughlin to Gotti. The Affidavit also stated that prior interceptions had revealed that Gotti used the phone himself to discuss affairs and schedule meetings with subordinates. Gaudioso submitted several examples of intercepted calls. One such call, on December 23, 1995, involved an unidentified male, identified only as Charlie, who called City Auto asking to speak to Michael McLaughlin. An employee, Vinny Spirito, had answered the phone and stated that Mike was not in. Charlie reported that one of "John's" gifts had been left at the restaurant. Charlie directed Spirito, "So send one of the guys you don't think is going to drop it. I don't know what the fuck it is, but I ain't taking no chances." Gaudioso concluded that, based on his familiarity with the methods and traditions of La Cosa Nostra, the conversation referred to a tribute payment.

On December 23, 1995, an unidentified male caller dialed City Auto and explained that he was looking for "John." The unidentified male speaker who answered the call indicated that McLaughlin was not at the location, and that he himself could not connect the caller to "John." Gaudioso concluded, and represented to Justice Miller, that this call indicated McLaughlin's role in contacting Gotti since an individual who wanted to speak to Gotti, in the first instance, had to ask permission of McLaughlin. On December 23, 1995, Craig DePalma called City Auto and in a terse discussion with McLaughlin asked McLaughlin, "You got it?" McLaughlin responded, "Yeah, it's right on my desk. I'm going to bring it over to him a little later." DePalma thankfully replied, "I knew I could rely on you." On December 26, 1995, a male speaker identified only as Joseph dialed City Auto and asked McLaughlin whether "John" would be available for dinner in order "to speak about a few things." Joseph mentioned that Gotti "is usually around on Wednesday night." McLaughlin responded, "That's right, it's Tuesday already." Gotti then got on the phone, explained that he was going to Boston and agreed to meet with Joseph after his return.

Justice Miller's January 18 amendment and extension authorized the Government to intercept conversations relating to gambling that included:

  the identities and relationships of co-conspirators,
  including conversations establishing the relationship
  between individuals committing the gambling offenses
  and those associated with the Gambino crime family,
  which is controlling the gambling operation; . . .
  the coordination of meetings to pay and collect
  monies, and to discuss and further illegal gambling,
  and communications setting up and coordinating
  meetings between the various members of the criminal
  conspiracy and the criminal syndicate controlling
  this gambling activity, and communications
  establishing the existence of the criminal
  syndicate; . . . .

The Affidavit submitted in support of the February 15, 1996 extension and amendment demonstrated that electronic surveillance had produced evidence of the ongoing operation of the Gambino Family and criminal activity occurring as a consequence of the DePalmas' membership in the Gambino Family. The Affidavit also recounts Craig DePalma's use of the phone at City Auto to arrange an appointment with his brother and an individual named "Rich" at a Manhattan law office, Peter Gotti's call to City Auto looking for Gotti, and eavesdropping that led to physical surveillance of Gotti and Craig DePalma at the Bergin Club. Gaudioso also submitted an Affidavit in support of the March 14 extension outlining several conversations intercepted over the City Auto telephone line which described, inter alia, McLaughlin's use of the phone to set up a meeting for Gotti with an "Iggy" at the Bergin Club and Gotti's call into City Auto requesting Craig DePalma's pager number.

Justice Miller, on April 25, 1996, amended the warrant application to authorize interception of defendant Plomitallo's home telephone and within his 1987 Mercury. The Heintz Affidavit submitted in support of the application described Plomitallo as a close associate of Gotti who transports Gotti to meetings in his 1987 Mercury and has personal knowledge of Gotti's role in the criminal operations under investigation. Heintz also averred that Plomitallo ordered an unnamed debtor to tender payments to Gotti — averments indicative of loan sharking activities. Gaudioso's Affidavit identified pen register, eavesdropping, and physical evidence establishing Plomitallo's relationship with Gotti. Generally, the Gaudioso Affidavit shows that Plomitallo and Gotti contacted one another by Plomitallo's home phone and Plomitallo's pager, that Plomitallo used his home phone to contact McLaughlin, the Bergin Club and 97-11 Sutphin Boulevard, and Gotti called Plomitallo to have him arrange transportation.

On May 10, 1996, Justice Miller authorized an extension of the interception of calls on Plomitallo's home phone and discontinued authorization to intercept communications within the Mercury. Gaudioso's Affidavit in support of the extension also discussed a call from the Bergin Club to Plomitallo's residence, directing Plomitallo to "pick him up five to twelve" and a later conversation that indicated that this person was John Gotti. On May 17, 1996 Justice Miller reauthorized the installation of a listening device in the 1987 Mercury and extended the interception of Plomitallo's home telephone. Gaudioso's Affidavit included observations of Plomitallo's car outside of the Bergin Club, and Plomitallo at dinner in a back room at a restaurant in Maspeth, New York with Gotti, Craig DePalma, William Marshall, Michael McLaughlin and others.

On June 6, 1996, Justice Miller extended the warrant for eavesdropping over Plomitallo's home telephone and the Mercury, and amended the warrant, inter alia, to permit interception over Gotti's home telephone and a 1996 Jeep driven by Anthony Amoroso. Gaudioso's Affidavit alleged that Gotti relied upon his home telephone to contact various members of his organization to arrange transportation to meetings with co-conspirators. The Affidavit outlined routine contact between the Gotti residence and the Bergin Club, the storefront at 97-11 Sutphin Boulevard, where Gotti and Plomitallo stored a parcel that was likely currency, City Auto, Steven Kaplan, one of Gotti's drivers who also participated in various meetings, McLaughlin, and Plomitallo. The Affidavit used these facts to conclude that the Gotti residence telephone was fully integrated into the network of telephones, pagers, cellular phones and pagers which Gotti used to arrange the meetings with co-conspirators necessary to his direction and control over the Gambino Family, the organization believed to be responsible for the crimes under investigation.

In support of the interception of oral communications within the 1996 Jeep, the Gaudioso Affidavit indicated that Amoroso was a trusted driver of Gotti who attended and participated in meetings between Gotti and co-conspirators, and that the 1996 Jeep served as a routine mode of transportation for Gotti. Gaudioso also detailed several conversations between and among Amoroso, Plomitallo, McLaughlin and Gotti concerning transporting Gotti to various places. The Affidavit also detailed a planned trip to Florida in May 1996 by Gotti, Amoroso, and Plomitallo and Gotti's subsequent withdrawal from the trip, which, Gaudioso posited, showed the trust Gotti had in both Amoroso and Plomitallo to travel to Florida to further his business affairs.

Surveillance also indicated Amoroso was present at the Bergin Club at times when Gotti was there and attended gatherings at restaurants that included Gotti and others. On two occasions identified in the Affidavit, parcels were placed into Amoroso's car following gatherings with others; after one of these occasions, Gotti departed with Amoroso in Amoroso's Jeep.

On June 26, 1996, Justice Miller amended the warrant to include interceptions over the telephone at the storefront at 97-11 Sutphin Boulevard, and on July 3, 1996, extended and amended the warrant to include interceptions within 97-11 Sutphin Boulevard. Gaudioso's Affidavit in support of the June 26 application also indicated that the phone at 97-11 Sutphin Boulevard had been used to contact: (1) the home of Gotti on 22 occasions between May 8 and June 14, 1996, (2) the Bergin Club, (3) JAG Brokerage, one of Gotti's businesses, (4) McLaughlin's home telephone, (5) Plomitallo's home telephone, (6) the cellular phone of Amoroso, and (7) Craig DePalma's pager. The Affidavit indicated that 137 calls had been placed from the phone at 97-11 Sutphin Boulevard to City Auto from May 3 to June 14, 1996, and six calls had been placed to three companies allegedly involved in separate construction and labor official bribery schemes. The Affidavit detailed meetings inside the building with the front gate down obscuring the storefront from public view, and a parcel being deposited at the store on October 12, 1995. The Affidavit further noted that eavesdropping over Gotti's home residence's telephone confirmed Gotti's routine presence at 97-11 Sutphin Boulevard as a consequence of frequent phone calls there from his wife.

A review of the evidence proffered in support of the warrants and the various amendments and extensions of the initial December 20, 1995 application establishes that probable cause was documented and that Justice Miller was provided a basis to believe that evidence of criminal activity would be intercepted.

Viewed discretely, many of these allegations might appear innocuous or to be insufficient predicates for probable cause. But Justice Miller was not obligated to review them in that manner. The affidavits submitted to her established probable cause to believe in the existence of the Gambino Family, to believe that it engaged in the criminal activities under investigation and to believe that Gotti had a leadership position. Viewing this constellation of evidence in the practical, common sense fashion the law requires, there was justification for her to conclude that seemingly innocuous conversations and disconnected activities reflected on-going organized criminal activity.

Gotti also contends that evidence supplied in support of the various applications was stale. The principal factors in assessing whether supporting facts have become stale are not only their age, but also the nature of the conduct alleged to have violated the law. See United States v. Gallo, 863 F.2d 185, 192 (2d Cir. 1988), cert. denied, 489 U.S. 1083, 109 S.Ct. 1539, 103 L.Ed.2d 843 (1989) (citation omitted). Where, as here, the supporting affidavits present "`a picture of continuing conduct,' as opposed to an isolated instance of wrongdoing . . . `the passage of time between the last described act and the presentation of the application becomes less significant.'" Id. at 191 (citation omitted); Rivera v. United States, 928 F.2d 592, 602 (2d Cir. 1991). Further, seemingly stale allegations can be revitalized by additional allegations containing current information indicating continuity of the alleged unusual activities. See United States v. Perry, 643 F.2d 38, 50 (2d Cir.), cert. denied, 454 U.S. 835, 102 S.Ct. 138, 70 L.Ed.2d 115 (1981); see also Gallo, 863 F.2d at 192. As previously noted, the affidavits presented to Justice Miller described an on-going criminal enterprise and satisfactorily documented the necessary continuity.

The December 20, 1995 warrant authorized the interception of conversations concerning gambling on the City Auto telephone. Gotti contends that no amendment was sought by the Government to seek authorization to intercept conversations pertaining to the additional crimes of usury, coercion and grand larceny, and that the January 18, 1996 extension and amendment application assumes such authorization has already been given. But these additional crimes were already within the scope of electronic surveillance of other phones and a listening device that were encompassed in the December 20, 1995 warrant. Thus, the Government correctly contended that the January warrant application, by its terms, was an extension and an amendment and that facts contained in the papers incorporated in that application supported a finding of probable cause to extend the interception at City Auto to include the other crimes.

Gotti also notes that there is no judicial response to the Government's late disclosure of prior eavesdropping of Gotti and McLaughlin in its December 20, 1995 and January 18, 1996 warrant applications. On January 24, 1996 Heintz disclosed this information to Justice Miller through a Supplemental Affidavit. This Supplemental Affidavit was stamped as received, and Justice Miller ultimately ratified and accepted the Government's good faith effort to comply with the statute by allowing the warrant to remain in force, and indeed, extended it on February 15, 1996. In any event, it is highly unlikely that had this disclosure been made earlier it would have vitiated the Government's showing of probable cause, and thus this objection does not supply a basis for suppression. See United States v. Massino, 657 F. Supp. 101, 106-107 (S.D.N.Y. 1987) (inadvertent failure to disclose previous eavesdropping does not require suppression of interceptions where non-disclosure did not affect probable cause).

Moreover, even assuming that the extensive affidavits somehow did not establish probable cause, law enforcement officers relied in good faith on the warrants. Under United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), evidence seized pursuant to a warrant which is later found not to have been grounded on probable cause will not be suppressed if the agents enforcing the warrant relied in good faith on the warrant. While Leon does not directly address electronic surveillance, other Circuits as well as Courts within this District have, for reasons this Court finds persuasive, extended its exception to wiretaps. See United States v. Moore, 41 F.3d 370, 376 (8th Cir. 1994) (applying Leon to wiretap evidence because of legislative history), cert. denied, 514 U.S. 1121, 115 S.Ct. 1985, 131 L.Ed.2d 872 (1995); United States v. Malekzadeh, 855 F.2d 1492, 1497 (11th Cir. 1988), cert. denied, 489 U.S. 1024, 109 S.Ct. 1149, 103 L.Ed.2d 209 (1989); United States v. Gangi, 97 cr 1215, 1999 WL 55821, at *4, (S.D.N.Y. Jan.27, 1999); Bellomo, 954 F. Supp. at 638 (even if court found no probable cause for wiretap order, wiretap evidence would not be suppressed where agents acted in good faith reliance); Ambrosio, 898 F. Supp. 177, 186-89 (S.D.N.Y. 1995) (applying good faith exception to wiretaps); but see United States v. Orena, 883 F. Supp. 849, 860 n. 7 (E.D.N.Y. 1995) (noting conflict among courts); United States v. McGuinness, 764 F. Supp. 888, 897 n. 2 (S.D.N.Y. 1991).

Gotti argues that Leon does not apply since the warrant applications were so lacking in indicia of probable cause that reliance upon them was unreasonable. As previously noted, however, the Government's submissions establish that the warrants, on their faces, were not manifestly deficient, that the agents who procured them did not act in a reckless or dishonest fashion and that the agents' reliance on them, was reasonable. The motion to suppress based on a lack of probable cause is denied.

II. MINIMIZATION OF ELECTRONIC SURVEILLANCE AND AMENDMENT TO
    INCLUDE CONVERSATIONS PERTAINING TO TELECOMMUNICATIONS

Zambouros and Gotti also contend that the Government failed to minimize the interception of communications that did not involve the criminal activity that was the subject of the warrants or to seek an amendment to reach interception of conversations concerning Gotti's telecommunications business. Zambouros seeks suppression based on these allegations. Gotti's contention is entirely based on an intercepted conversation in Plomitallo's car relating to Gotti's involvement in starting the telecommunications business that is the subject of the Indictment.

Turning first to Zambouros, he was intercepted, not on his line, but on the telephone lines of Gotti and Plomitallo, in the interior of Gotti and Plomitallo's office and in Plomitallo's car. Consequently, he lacks standing to make this minimization challenge. See United States v. Ruggiero, 928 F.2d 1289, 1303 (2d Cir. 1991) (Movants had no expectation of privacy in someone else's home and telephone that would provide a basis for them to seek suppression of evidence; 18 U.S.C. § 2518(10)(a)(i) and (iii) which provides that "[a]ny aggrieved person" may move to suppress wiretap evidence when "the communication was unlawfully intercepted" or "the interception was not made in conformity with the order of authorization," is to be construed in accordance with standing requirements usually applied to suppression claims under the Fourth Amendment.); United States v. Gallo, 863 F.2d 185, 192 (2d Cir. 1988).

When Government agents intercept communications pursuant to Title III, "[t]he statute 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 have been met. See United States v. Cirillo, 499 F.2d 872, 880-81 (2d Cir.), cert. denied, 419 U.S. 1056, 95 S.Ct. 638, 42 L.Ed.2d 653 (1974); United States v. Manfredi, 488 F.2d 588, 599-600 (2d Cir. 1973).

The determination as to whether minimization should have occurred requires an assessment of the reasonableness of the interceptions in light of the purpose of the wiretap and the totality of the circumstances. United States v. Napolitano, 552 F. Supp. 465, 476 (S.D.N.Y. 1982) (citing Scott, 436 U.S. at 131, 139-140, 98 S.Ct. 1717). Minimization may be more difficult, and more extensive surveillance may therefore be permitted, if the investigation focuses on a widespread conspiracy. See Scott, 436 U.S. at 140, 98 S.Ct. 1717; Napolitano, 552 F. Supp. at 476. Also, the interception of a large number of non-pertinent telephone calls when the conversations are short, coded or ambiguous in nature does not necessarily mean minimization requirements were not met. Scott, 436 U.S. at 140, 98 S.Ct. 1717 ("the percentage of nonpertinent calls is relatively high and yet their interception was still reasonable").

Courts have identified several measures which, if taken by the Government, support a finding of compliance with § 2518(5). These include: 1) maintenance of monitoring logs, 2) judicial supervision of the progress of the surveillance, 3) supervision by the prosecutor, and 4) requiring all monitoring personnel to read the minimization instructions, court orders and applications, and the posting of these documents at the monitoring location. United States v. Santoro, 647 F. Supp. 153, 161 (E.D.N.Y. 1986) (citations omitted), aff'd, 880 F.2d 1319 (2d Cir. 1989).

The procedures followed by the Government in this investigation constituted a reasonable, good faith attempt to minimize the interception of non-pertinent communications and complied with applicable minimization requirements. United States v. Hinton, 543 F.2d 1002, 1011 (2d Cir.), cert. denied, 429 U.S. 980, 97 S.Ct. 493, 50 L.Ed.2d 589 (1976); Santoro, 647 F. Supp. at 160. Because Zambouros, assuming he had standing, has failed to demonstrate that a substantial number of nonpertinent conversations were unreasonably intercepted, suppression, or in the alternative a hearing, is not required. See United States v. Cirillo, 499 F.2d 872, 881 (2d Cir.), cert. denied, 419 U.S. 1056, 95 S.Ct. 638, 42 L.Ed.2d 653 (1974).

Zambouros and Gotti also contend that no amendment to Justice Miller's authorization was sought or obtained to extend to communications concerning telecommunications fraud.*fn5 This contention is not supported by the record. Title III dictates that an eavesdropping warrant specify the crimes to be evidenced through the conversations to be monitored. See 18 U.S.C. § 2518(4)(c). The Title also provides that the contents of communications which constitute evidence of crimes not specified in the eavesdropping warrant under which interception was effected may not be used as evidence of such crimes in another proceeding, unless the use of such communications is "authorized or approved by a judge of competent jurisdiction where such judge finds on subsequent application that the contents were otherwise intercepted in accordance with the provisions of this chapter." 18 U.S.C. § 2517(5).

On October 14, 1997, Justice Miller issued an order pursuant to § 2517(5) permitting the disclosure of intercepted communications as evidence of certain federal offenses, including access device fraud. The order was based upon, and incorporated, the application by Heintz, which discussed the interception of the communications constituting access device fraud. The Heintz application stated:

  In addition to generating evidence of the state and
  federal crimes enumerated above, the execution of the
  incorporated Warrants also produced substantial
  evidence of a scheme perpetuated by John A. Gotti and
  others to defraud telecommunications carriers and
  consumers, in violation of 18 U.S.C. § 1029 (Access
  Device Fraud). The incorporated Warrants did not name
  this offense or any analogous state crime. The
  interception of communications related to this
  scheme, however, was a consequence of the exercise of
  authority to intercept related types of
  communications specified in the Warrants. Upon
  learning of the existence of Nicodan
  Telecommunications, a prepaid calling card business
  owned by Gotti and operated from his office at 97-11
  Sutphin Boulevard, Queens, New York, OCTF Special
  Investigator Ercole Gaudioso learned from other law
  enforcement officers with experience in the
  investigation of crimes committed through the
  marketing of

  prepaid calling cards that that industry offers
  viable opportunities to launder cash proceeds of
  criminal operations, such as gambling and
  loansharking, forms of racketeering within the scope
  of this Warrant. Because the incorporated Warrants
  authorized the interception of communications
  evidencing the generation, secreting and disbursement
  of revenue obtained through the commission of these
  crimes, executing officers intercepted conversations
  pertinent to this scheme to determine if Nicodan's
  cash revenue was related to the cash-generating forms
  of racketeering identified in the Warrants. . . .
  Finally, it was not until August 1997 that probable
  cause existed to believe that these communications
  constituted evidence of a scheme to defraud, our
  ultimate understanding of the probative value of
  these communications by the U.S. Secret Service and
  the tender of business records to OCTF by industry
  members. . . .

Justice Miller also determined in the October 1997 order that the original orders were applied for in "good faith" and not as a pretext to intercept evidence of unauthorized offenses. Accordingly, a proper amendment was sought and granted by a court of competent jurisdiction. See In re Grand Jury Subpoena Served on Doe, 889 F.2d 384, 389 (2d Cir. 1989) (statutory definition confers upon a state magistrate who issued an original warrant jurisdiction to entertain an application pursuant to 18 U.S.C. § 2517(5)). Thus, Gotti's contention that the Government failed to minimize or seek an amendment is not supported by the record. Also, Zambouros' motion to suppress, is denied.

III. SUPPRESSION OF FRUITS OF THE BASEMENT SEARCH

Gotti challenges the February 3, 1997 search of the basement in the apartment at 106-13 101st Avenue, Queens, New York. Gotti argues that 1) the probable cause showing supporting the issuance of the first search warrant was tainted through a prior warrantless "sneak and peek" search, and 2) suppression of the fruits of the basement search is required because the search warrant was facially defective and the executing officers grossly exceeded its scope. A hearing was held on these issues on March 11, 1999. For the reasons stated below, Gotti's motion to suppress is denied.*fn6

A. "Sneak and Peek" Search

Citing the testimony of OCTF Special Investigator Diego Cruz, a participant in the basement search, at Gotti's January 29, 1998 detention hearing before Magistrate Judge Mark Fox, Gotti contends that the probable cause showing for the issuance of the February 2, 1997 search warrant for the basement search was tainted by a prior warrantless "sneak and peek" search. In particular, Gotti challenges Cruz's testimony that he was one of the first agents to arrive at the scene, that when he arrived, the combination lock on the door had been punched out, leaving the door — which was "ordinarily" locked — wide open, and that he and other members of his squad had previously conducted on-site surveillance of the premises.

This testimony, Gotti argues, raises the distinct possibility that the police were responsible for punching out the lock, and that prior to the February 3 execution of the warrant, law enforcement officers 1) secretly broke into the premises, 2) punched out the lock on the basement door, 3) effected an illegal warrantless search, 4) used the resulting observations to bolster a follow-up warrant application and/or 5) planted evidence with an eye to framing Gotti. Gotti points to the substantial sums of cash found on the premises as further evidence that information contained in the warrant application could only have come from an earlier covert entry.

Gotti's main basis for his conclusions is the testimony of Special Investigator Diego Cruz given at the January 29, 1998 detention hearing, which Gotti claims raises questions as to the occurrence of police misconduct. Gotti, however, has distorted Cruz's testimony, and has not shown that any false statements were made. A review of the January 29, 1998 transcript, with Cruz's testimony taken in context, makes clear that Cruz's recollections of the events surrounding the search were that on the day of the search he entered the hallway and saw that the basement door was closed with a combination lock that was not engaged, and that the other key-style locks were not engaged, allowing the officers to enter the basement without breaking either the locks or the door. But Cruz also testified that neither he nor the officers broke down the door in any way. This testimony raises no inference of police misconduct.

In addition, at the March 11, 1999 hearing, Cruz again credibly testified that when he arrived at the premises on February 3, 1997, the basement door was open, the key locks were not engaged, and the combination lock had been removed. He also noted that once he noticed that the door was open, he paid little attention to the condition of the locks. Cruz additionally testified that prior to that day, he had never been in the basement. Cruz's testimony, given over the course of two hearings, fails to substantiate Gotti's claim that a "sneak and peek" search of the premises occurred prior to the issuance of the first search warrant. Accordingly, Gotti's motion to suppress on these grounds is denied.

B. Validity of the February 2, 1997 Basement Search Warrant

Gotti challenges the validity of the February 2, 1997 warrant that authorized a search the following day of the basement at 106-13 101st Avenue, Queens, New York. Gotti's challenge comes on several grounds: 1) there was no probable cause for the warrant; 2) the warrant was vague and overbroad; 3) the search exceeded the warrant's scope; and 4) neither the good faith, the plain view, nor any other exception to the exclusionary rule applies.

1. Probable Cause

In determining whether a warrant was sufficiently supported by probable cause, the reviewing court considers the "totality of the circumstances." Illinois v. Gates, 462 U.S. 213, 230, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). A magistrate or judge deciding whether to issue a warrant is dealing with probabilities, not technicalities because "probable cause is a fluid concept — turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a neat set of rules." Id. at 231, 232, 103 S.Ct. 2317. As previously noted, the reviewing court should show substantial deference to a probable cause determination made by a detached and neutral judge, resolving any doubts in favor of upholding the warrant. United States v. Rosa, 11 F.3d 315, 326 (2d Cir. 1993) (citing United States v. Travisano, 724 F.2d 341, 345 (2d Cir. 1983)). Indeed, the duty of a reviewing court is simply to ensure that the magistrate had a "substantial basis for . . . conclud[ing]" that probable cause existed. Illinois v. Gates, 462 U.S. at 238-39, 103 S.Ct. 2317 (quoting Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960)).

When considered against these presumptions, this Court finds that the February 2, 1997 affidavit submitted by Ercole J. Gaudioso, a Special Investigator in the New York State Organized Crime Task Force, provided probable cause to support the issuance of a search warrant for the basement premises. Gaudioso's ten-part, eighty-seven page affidavit incorporated a number of prior affidavits and detailed the progress of the joint federal and state investigation into the activities of the Gambino Family. The affidavit described, inter alia, what the investigators understood to be Gotti's racketeering activities through JAG Brokerage, the alleged shell corporation whose records the investigators hoped to find in the basement, and set forth facts tending, when taken in totality, to show that Gotti used the basement to store large amounts of cash.

Gotti argues that because the searching officers did not find JAG Brokerage's business records in the basement, there was no probable cause. Because the existence of probable cause is determined on the strength of what is presented to the judicial officer, its existence does not depend on the fruits of the search. See Ornelas v. United States, 517 U.S. 690, 696-97, 116 S.Ct. 1657, 1661-62, 134 L.Ed.2d 911 (1996) ...


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