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U.S. v. AGNELLO

August 13, 2001

UNITED STATES OF AMERICA, PLAINTIFF,
V.
CARMINE AGNELLO, ET. AL., DEFENDANT.



The opinion of the court was delivered by: Gershon, District Judge.

ORDER

Upon review of the Report and Recommendation of Magistrate Judge Robert M. Levy dated July 20, 2001, recommending denial of the defendants' motion for a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), and to suppress electronic surveillance evidence, and no objections having been filed (other than a letter on behalf of defendant Steven Scala that he joins in any objections filed by co-defendants, none of which were made), Judge Levy's Report and Recommendation is adopted as the Order of this Court.

SO ORDERED.

REPORT AND RECOMMENDATION

The Honorable Nina Gershon, United States District Judge, referred this matter to me for a report and recommendation on defendants' motion for a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), and to suppress electronic surveillance evidence. For the reasons stated below, I respectfully recommend that defendants' motion be denied.

BACKGROUND AND FACTS

Defendant New York Shredding Corp., on behalf of all defendants jointly,*fn1 brought this motion on March 23, 2001 pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), and its progeny, alleging that the May 3, 1996 application supporting the third extension and first amendment of a New York State eavesdropping warrant for the telephone of Charlie Marino at Marino's Auto Salvage, located at 150-10 Beaver Road, Queens, New York (the "Marino telephone"), lacked probable cause because it contained "`reckless omissions or false statements.'" (Memorandum of Law in Support of Defendants' Joint Franks Motion to Suppress Electronic Surveillance Evidence ("Dfts.' Mem."), at 2-3 (quoting United States v. Miller, 116 F.3d 641, 664 (2d Cir. 1997))). Defendants request a Franks hearing and seek to suppress all of the electronic surveillance in this case. I heard oral argument on May 24, 2001.

On February 6, 1996, the New York City Police Department's Queens County District Attorney's Squad (the "QDA Squad") obtained an eavesdropping warrant for the Marino telephone in order to investigate an alleged "chop shop" operation. (Dfts.' Mem. at 2-3; see also Government's Memorandum of Law in Opposition to Defendants' Motion for a Franks Hearing and to Suppress Electronic Surveillance Evidence, dated April 23, 2001 ("Govt's Mem.") at 2.)*fn2 The QDA Squad sought these communications relating to the crimes of Falsifying Business Records in the First Degree, Offering a False Instrument for Filing in the First Degree, Grand Larceny in the Third and Fourth Degrees, and Criminal Mischief in the Second and Third Degrees. (See Application of Richard A. Brown, dated February 6, 1996.)*fn3 Detective Cary Brenner of the New York Police Department testified that the CI had informed him that Marino's "is a business which distributes used vehicle parts many of which have been removed from stolen vehicles or from vehicles which are the subject of `insurance jobs' either at `Marino's' or at chop-shops located elsewhere." (Brenner Aff. I ¶ 20.) Insurance jobs involve collusion between a vehicle owner and a vehicle dismantling enterprise, whereby the owner falsely reports the vehicle was stolen but, in order to collect insurance proceeds, in reality delivers it to a vehicle dismantler. (Brenner Aff. I ¶¶ 14-18.)

Although Carmine Agnello ("Agnello") was not named as a target in the initial eavesdropping warrant, the warrant application contained information about Agnello and his alleged involvement with the Marino enterprise. (Govt. Mem. at 10.) A pen register order revealed five telephone calls from the Marino telephone to and from Jamaica Auto Salvage, Inc. and ten telephone calls made to and from Jamaica Auto Salvage II. Agnello owned both businesses. (Brenner Aff. I ¶ 35b-c.)*fn4 Further, Detective Brenner noted that years earlier Agnello had been charged with grand larceny in the second degree, criminal possession of stolen property in the first degree, possession of burglar tools, and unauthorized use of a motor vehicle, but pleaded guilty in 1984 to possession of burglar tools, resulting in a fine and a conditional discharge. In addition, in 1985 Agnello was convicted after a trial of criminal possession of stolen property in the second degree, possessing an unregistered vehicle dismantler (a class E felony pursuant to Section 415-A of the Vehicle and Traffic Law), and two counts of vehicle dismantler registration violations (a class A misdemeanor pursuant to Section 415-A of the Vehicle and Traffic Law). However, only the misdemeanor charges involving vehicle dismantler registration violations were upheld on appeal.*fn5 (Brenner Aff. I 35b.) Detective Brenner declared: "I know Carmine Agnello to be in control of vehicle dismantling operations where stolen vehicles are being dismantled and parts being distributed to numerous auto body repair shops through previous investigations I have conducted." (Brenner Aff. I ¶ 35b.) Brenner further stated that "it is believed that MARINO works under Carmine Agnello in this vehicle theft and illegal vehicle dismantling enterprise (based upon information provided by the CI and investigations I have conducted in the past)." (Id. ¶ 42.)*fn6

In preparing the initial application, Detective Brenner relied on information provided by a confidential informant ("CI"). The CI told Detective Brenner of Marino's involvement in the vehicle dismantling enterprise and Agnello's involvement in criminal activity. (Brenner Aff. I ¶ 21; 35b). The CI informed the detective of his own personal involvement in criminal activity directed by Agnello. (Id. at ¶ 35b.)*fn7 Based in part on information provided by the CI, Detective Brenner knew that Agnello controlled numerous illegal vehicle dismantling operations, that Marino worked under Agnello in these operations, that Debra DeCarlo ("DeCarlo") worked for Agnello conducting a majority of the daily activities for his illegal dismantling enterprises, and that DeCarlo moved into the building at 150-06 where Marino's was located. (Id. ¶ 42; Affidavit of Cary Brenner, dated May 3, 1996 ("Brenner Aff. II"), ¶ 29, annexed as Ex. C to the Fernich Aff.)*fn8 The CI also informed Detective Brenner that he had been involved in the Marino criminal enterprise. (Brenner Aff. I ¶ 21.)*fn9

Marino had admitted to the CI that he replaced VIN number plates on stolen vehicles with VIN numbers from salvaged vehicles, and the CI had been present when Marino told a person who delivered "insurance job" vehicles that the owner could report the vehicle stolen once the car had been dismantled. (Id. at ¶ 22.) Moreover, the CI had engaged Marino in tape-recorded telephone conversations regarding the illegal vehicle dismantling business. (Id. ¶ 21; 30.)

In his affidavit, Detective Brenner explained that he had been a police officer with the New York City Police Department ("NYPD") for twenty-two years and a detective since 1990 with extensive training and experience in illegal dismantling investigations.*fn10 (Brenner Aff. I ¶ 4.) Detective Brenner concluded that

[a]s a result of all of my training as well as my experience in conducting investigations of illegal vehicle dismantling activity, I am familiar with the manner in which an illegal vehicle dismantling enterprise operates and I am also familiar with many of the words and phrases used by participants in illegal vehicle dismantling activity when they discuss the operation of such an illegal enterprise.

(Id. at ¶ 8.)

On May 3, 1996, the QDA sought to extend the thirty-day eavesdropping warrant for the third time and to amend it to include Carmine Agnello and Debra DeCarlo as targets of the investigation. The application also sought to amend retrospectively the eavesdropping warrant in order to preserve the use of certain communications as they related to computer trespass-related crimes. (Application of Richard A. Brown, dated May 3, 1996 ("Brown App.") .) The application for the third extension and amendment of the eavesdropping warrant incorporated by reference the original eavesdropping warrant, the first and second extensions, and the applications and affidavits in support thereof. (Affidavit of Bill Gianaris, dated May 3, 1996, ¶ 5.) On May 3, 1996, Justice O'Brien granted the application in full and ordered interception of telephone calls at the Marino telephone for an additional thirty days. (See Order dated May 3, 1996 annexed as Ex. C to Fernich Aff.) It is this extension that defendants contest.

The May 3, 1996 extension included the affidavit of Detective Brenner, which explained that previous wiretaps had intercepted several conversations regarding the illegal use of an NYPD computer to run license plates. (Brenner Aff. ¶ 27.) For example, in a conversation intercepted on April 26, 1996, Macarthur Perry, an employee at "Marino's," informed Marino that Agnello "wanted to check a plate." (Id.) Marino responded, "Okay, you take care of it for him?" and Perry answered "[inaudible] Jackie in the office, got to wait till she gets back." (Id.) Later in the day Marino had a conversation with a woman identified as Perry's wife, NYPD officer Jacqueline Scruggs, in which he provided her with the license plate number "E104YK." (Id.; Govt's Mem. at 16.)

Later that same day, in an intercepted call from Agnello to Marino, Agnello inquired, "Charlie, that number I gave that guy did he get anything yet?" and Marino responded "I didn't get it back yet," at which point Agnello provided Marino with another license plate number, "E855MJ." (Brenner Aff. II ¶ 27.) About an hour later Marino called Scruggs and asked "you run those plates for me?" to which Scruggs responded "I got no hit on that plate." Scruggs then said that if there was no hit, then the plate belonged to a cop. (Id.) Marino then gave Scruggs the "E855MJ" plate provided by Agnello an hour earlier. (Id.) Based on these telephone conversations, Detective Brenner concluded that

it is evident that MARINO, PERRY, AGNELLO AND SCRUGGS are all using the subject telephone line in furtherance of the commission of the crimes of computer trespass and unauthorized use of a computer by knowingly using a N.Y.C. Police Department computer to run license plate numbers in furtherance of an illegal vehicle theft and dismantling enterprise. Based on my expertise, I can conclude that the reason for running plate numbers in this instance is to determine whether "insurance job" or stolen vehicles have been reported stolen yet or to determine whether there is an undercover police vehicle in the vicinity.

Id.

As noted earlier, according to information from the CI, surveillance of Marino's, and intercepted conversations over the Marino telephone, Debra DeCarlo moved into the building located at 150-06 Beaver Road where Marino's business was located and set up a telephone line. (Id. ¶ 29.) Agnello's business, Jamaica Auto Salvage, was located around the block from Marino's. (Id.) Detective Brenner noted that "there were . . . numerous conversations intercepted over the subject telephone line involving Carmine Agnello and his employee, Debbie Decarlo." (Id.)*fn11 Further, "[d]uring these conversations between Agnello and Decarlo, Agnello and Decarlo are constantly discussing the running of Agnello's businesses, including his illegal vehicle dismantling operation on one occasion." (Id.)*fn12

Detective Brenner testified that "[o]f particular interest is a telephone conversation" recorded on April 8, 1996 between Agnello and DeCarlo which is set forth as follows:

CM Charlie Marino

CA Carmine Agnello

D Debbie DeCarlo

CA Where is she?

CM Hold on a ...


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