The opinion of the court was delivered by: Seybert, District Judge:
Pending before the Court is a Motion to Dismiss, pursuant to Fed. R. Crim. P. 12(b), coupled with other pre-trial motions, filed by Christian Tarantino ("Tarantino" or "Defendant").
More specifically, Tarantino moves for: (1) the suppression of a conversation, surreptitiously recorded, in which he indirectly confesses to two of the murders charged in the Indictment; (2) dismissal of Counts One and Two on account of statute of limitations problems; (3) dismissal of Count One due to the Government's failure to allege intent in connection with the Defendant's alleged participation in the killing of an armored car guard; (4) a limited bill of particulars; and (5) miscellaneous discovery requests.
I. Motion to Suppress Pursuant to Title III of the Omnibus Crime Control and Safe Street Acts of 1968, 18 U.S.C. § 2511(1).
Tarantino moves to suppress an audiotape ("Gargiulo audiotape") on the theory that it violates 18 U.S.C. § 2510 et seq., the federal wiretap law, otherwise known as "Title III". (An oral communication intercepted in violation of Title III may not be received in evidence at trial, at any hearing or grand jury proceeding. 18 U.S.C. § 2515.) More precisely, he invokes 18 U.S.C. § 2511(2)(d), which provides:
"It shall not be unlawful under this chapter for a person not acting under color of law to intercept a wire, oral, or electronic communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State." (Emphasis added.)
The Gargiulo audiotape contains a conversation between the victim Vincent Gargiulo -- at the time of the conversation a friend and business co-venturer of Tarantino -- and Tarantino. In it, Tarantino discusses, among other things, his participation in the 1994 murders of Julius Baumgardt and Louis Dorval with which he is presently charged; he also frets about the Government's taking of a buccal swab in July 2000. The Government reasons that the tape, which it obtained during its April 2004 investigation into Gargiulo's death, was created in September 2000 given that Tarantino stated that (a) the Baumgardt and Dorval murders took place "six coming up on seven" years prior to the conversation (i.e., 1994) and (b) the buccal swab had been taken two months earlier (i.e., July 2000).
In his initial memorandum in support of his motion to suppress the tape, Tarantino argued, first, that the Government bears the burden of proving that consent to intercept the conversation was obtained from Gargiulo and that the Government has not met that burden. The Government failed, Tarantino averred, to show that the tape had not been created by a third-party (say, the Government) unbeknownst to both Gargiulo and Tarantino. After receiving a pertinent FBI 302 report, and in his August 6th letter to the Court, Tarantino appears to have discarded this aspect of his brief. That is probably because in the 302 report Gargiulo explains to several Special Agents that he furtively recorded the conversation to gain "insurance" against Tarantino, who, according to Gargiulo in the tape, "ruined all the gyms" in connection with what "happened between me and you (Tarantino)." Draft Transcript, Part II, p. 33. Moreover, in the tape Gargiulo confesses to Tarantino that "I've been mad at you (Tarantino) and blamed you for Greg . . . I am really mad. I don't think he had to die." Draft Trans., Part II, p. 34.
Gargiulo's secret "insurance" dovetails with Tarantino's second suppression argument. An interception such as the one made by Gargiulo is unlawful, and therefore forbidden in court, when it is "intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State." 18 U.S.C. § 2511(2)(d). Tarantino therefore contends that the "ruined all the gyms" history, coupled with the fact that Gargiulo clandestinely recorded Tarantino confessing to two murders, Gargiulo's comment to the Special Agents that the purpose of the recording was to gain "insurance" against Tarantino, Gargiulo's remark that he was very mad at Tarantino, and above all Gargiulo's extortion attempt*fn1 on Tarantino using the audiotape, plainly shows that the tape was created "for the purpose of committing a criminal or tortious act in violation of the Constitution or laws of the United States or of any State"; to wit, extortion or blackmail.
Noting that the Defendant bears the burden of proving by a preponderance of the evidence that the "primary motivation or a determining factor" in making the recording was to further a criminal or tortious act, the Government asserts that even though Gargiulo did threaten in 2003 to expose Tarantino with the tape if the latter failed to make payments, the deterioration in their relationship that prompted this threat was not manifest at the time of the tape's creation; their health-club partnership, the proximate cause of their falling out, failed two years after the recording was made. Rather, the tape reveals that Gargiulo's primary motivation for recording Tarantino was to clear Gargiulo's name by establishing that he was not involved in the 1994 murders. And the Government argues that such an interception to prevent future distortions by a participant is neither criminal nor tortious.
Yet, as Tarantino responds in his reply, the precedent on which the Government relies for the last point involves situations in which an accomplice or co-conspirator--people who have real grounds for believing that they are not free from suspicion--records a conversation. Not so, here. In any event, were Gargiulo suspected of being involved in the 1994 murders and concerned about clearing his name, why would he have attempted to sell the tape to the FBI? Why would Gargiulo dub the tape insurance "against" Tarantino if the primary motivation behind the tape's creation was to establish Gargiulo's innocence of a crime of which he was apparently never even suspected, still less accused?
Although the Second Circuit's gloss of 18 U.S.C. § 2511(2)(d) is not complicated, its application here requires close scrutiny. Under that provision, the interception of a conversation is unlawful when it is shown either (1) that the primary motivation, or (2) that a determinative factor in the actor's motivation for intercepting the conversation was to commit a criminal or tortious act. In re Double-Click, Inc. Privacy Litigation, 154 F. Supp. 2d 497, 515 (S.D.N.Y. 2001). Caselaw and legislative history instruct the Court that the "criminal" or "tortious" purpose requirement is narrowly construed to encompass only "a specific contemporary intention to commit a crime or tort." Id. The In re Double-Click court further elaborated that "courts applying § 2511(2)(d) have consistently ruled that a plaintiff cannot establish that a defendant acted with a "criminal or tortious purpose 'simply' by proving that the defendant [in fact did commit] any tort or crime." Id.
There are a number of clues in the briefs and affidavits that bear on Gargiulo's purpose in creating the recording. First, the FBI 302 report shows that Gargiulo told several Special Agents that the tape was his "insurance" against Tarantino. This statement is somewhat equivocal. For the "insurance" might work in a variety of ways, some of which might not be "criminal" or "tortious". For example, being of the impression that Tarantino was murderous (apart from the 1994 victims, Gargiulo believed that Tarantino killed a mutual acquaintance named Greg, which left Gargiulo miffed and created bad blood between the two), Gargiulo may have intended to use the recording for personal protection against the risk that Tarantino would come after him. In that case, Gargiulo's purpose in the creation of the tape would not constitute blackmail (and therefore the tape would be admissible) since he would not be demanding anything in consideration for not handing the taped confession over to law enforcement--except for his life to which he was already entitled. On the other hand, he may have expected all along that the tape would yield monetary dividends either through the blackmail of Tarantino or its sale to law enforcement; and in fact Gargiulo attempted both of those actions. Indictment, ¶¶ 14-15. Only the first of those intents--blackmailing Tarantino--would be criminal or tortious. True, Gargiulo first attempted to extract money from Tarantino with the tape before he went to the FBI, perhaps indicating that the blackmail inclination was stronger than the perfectly legal, ratting-out inclination. But the events were close in time; it is therefore difficult to say which event furnishes a clearer view of Gargiulo's motive at the time the tape was created. Anyway, both events probably*fn2 occurred three years after the recording of tape, rendering them less probative of Gargiulo's specific intent at the time of creation.
But even if Gargiulo intended the tape to serve as a kind of financial insurance which could someday be employed to blackmail Tarantino, this does not satisfy In re Double-Click Privacy Litigation's requirement that a defendant prove "a specific contemporary intention to commit a crime or tort" by a preponderance of the evidence. If Gargiulo regarded the recording as a type of insurance against a rainy day, by definition he did not have a contemporary intention to commit a crime or tort. ...