United States v. Bonanno

• Decision Date: 12 January 1960
• Citation: 180 F. Supp. 71
• Parties: UNITED STATES of America v. Joseph BONANNO et al., Defendants.
• Court: U.S. District Court — Southern District of New York

180 F. Supp. 71

UNITED STATES of America v. Joseph BONANNO et al., Defendants.

United States District Court S. D. New York.

January 12, 1960.

COPYRIGHT MATERIAL OMITTED

Harry H. Oshrin, Louis Susman, Maurice Edelbaum, New York City, Remo A. Allio, Endicott, N. Y., Franken, Kramer, Bam & Nessen, New York City, Maurice Nessen, New York City, of counsel, David M. Markowitz, New York City, Henry C. Lavine, Cleveland, Ohio, Moses Kove, New York City, Anthony Callandra, Newark, N. J., Edward H. Levine, Abraham Brodsky, New York City, Frank G. Raichle, Buffalo, N. Y., George Feit, New York City, S. Thomas Bianco, Pittston, Pa., Henry G. Singer, Brooklyn, N. Y., Louis Mansdorf, New York City, Fred H. Mandel, Cleveland, Ohio, Joseph K. Guerin, New York City, for defendants.

Milton Wessel, Chief, White Plains, N. Y., Marvin B. Segal, Deputy Chief, New York City, Louis T. Gallo, East Patterson, N. J., Edward Brodsky, John E. Spriyyo, Michael A. Berch, Brooklyn, N. Y., for the United States.

IRVING R. KAUFMAN, District Judge.

I. Background.

On November 6, 1959 and after the trial of this case had been under way for over a week, the defendants moved for an order suppressing all evidence procured through law enforcement activities in and around Apalachin, New York, on November 14, 1957.¹ Their motions were made after a considerable portion of that evidence had been offered without objection. Treating the motions as made pursuant to Rule 41, Federal Rules of Criminal Procedure, 18 U.S. C.A., it is clear that they were not timely.² The defendants had been given several months prior to trial in which to prepare their respective cases, and all the facts bearing upon the practices now challenged were fully known to them during that period. The reasons advanced by counsel for their delay were totally insufficient. See Tr. 2299-2300.

Nevertheless, since the instant motions raised constitutional issues of central importance to the prosecution of the case, I determined that the defendants should be given every opportunity to present the substance of their claims. I therefore ordered a hearing on the legality of the challenged police procedures to be held on November 16, 1959. That hearing was held in camera, as requested by the defense (Tr. 2314-14a), to assure that no facts which might be prejudicial to the defendants would be brought to the attention of the jury, even accidentally. Though given the opportunity, the defense did not choose to present any witnesses. The government presented only one witness, Sgt. Edgar D. Croswell of the New York State Troopers, who was in charge of the police investigation at Apalachin.³ He was subjected to the most searching cross-examination by the defense.

On the basis of the facts established at the hearing, and those which had already been brought out during the government's case in chief, I denied the defendants' motions to strike and suppress testimony, in a preliminary opinion filed on December 2, 1959. In that opinion I presented my conclusions without factual detail or elaboration. I pointed out that to have done otherwise at that time might have defeated the purpose for which the hearing was held in camera.

At the present time, however, the trial has been completed,⁴ and the factual material developed at the hearing can in no way prejudice the defendants. A full and clear understanding of the questions presented by these motions requires a more detailed opinion. I have decided, therefore, to file this opinion, utilizing the facts established at the hearing and during the entire course of the trial, in order to clarify the grounds and extent of my earlier ruling.⁵

II. Facts.

Joseph Barbara, Sr., at whose estate the gathering took place, had long been under investigation by the New York police, including Sgt. Croswell. They believed him to have been involved in the manufacture and distribution of illegal alcohol in Pennsylvania. He had been picked up on suspicion of murder on three occasions, and was suspected by the police in the Apalachin area of having been involved in two murders and two disappearances. Barbara, Sr. had associated and met with racketeers in the Endicott, N. Y. area and was generally considered by investigators as being behind the rackets in Broome County. Tr. 2082-84. In 1946 Barbara was convicted of an OPA violation involving the illegal acquisition of 300,000 pounds of sugar (Tr. 2087), a prime ingredient in the manufacture of alcohol.

In 1949 defendant Pasquale Turrigiano was arrested for operating a still. Barbara made payments on Turrigiano's truck, conferred constantly with him during the period of investigation and supplied sugar to Turrigiano. Tr. 2083-4, 2087. Barbara also had connections with one Anthony Ziamba, who had also been arrested for illegal alcohol activities. Tr. 2084.

In October 1956 a man named Galente was arrested for a traffic violation. One of his companions, who ran off, was Frank Garafolo. Upon investigating the incident the police discovered that Garafolo had registered at the Arlington Hotel in Binghamton, N. Y. with Louis Volpe, Joseph Bonanno (a defendant), John Bonventre (a co-conspirator, not indicted) and Joseph Barbara, Sr., who had reserved the rooms and whose local Canada Dry bottling company paid the hotel bills. Galente, when arrested, exhibited the driver's license of Joseph Di Palermo, who had a long list of alcohol violations. Tr. 2084-85, 2156.

On November 13, 1957 Sgt. Croswell observed Barbara, Jr. register for three rooms at the Parkway Motel (near Apalachin) in the name of the Canada Dry bottling company, owned by his father. Tr. 2190. When later that day two persons in an Ohio car arrived and took possession of one of the rooms, Sgt. Croswell asked the proprietor to have the two of them sign a registration card. The persons refused to do so. Tr. 2110.

That evening Sgt. Croswell contacted Agents Ruston and Brown of the United States Alcohol and Tobacco Tax Unit. Tr. 2042. He was aware of the 1956 gathering in which Barbara, Sr. had taken part, of Barbara's close association with Turrigiano and Ziamba and his conviction for illegal acquisition of 300,000 pounds of sugar, a prime ingredient in the manufacture of alcohol, and thus believed that something having to do with their jurisdiction was brewing. Tr. 2108-09, 2207.

At approximately 12:30 p. m. on November 14, 1957, the Troopers and Federal Agents drove into the Barbara parking area. Vasisko, who was driving, testified that there was never any intention to go past that point (Tr. 1423-24), and in fact the car went no further. The officers stayed only a few minutes, during which time they observed some persons on the property and some 20 to 25 cars parked in various places, the bulk of them parked away from the normal parking area and near the Barbara barn. Tr. 2113-15, 2239, 2242, 2246. Croswell testified that he had never seen so many cars on the Barbara property before. Tr. 2240-42.

The officers immediately backed their car off the Barbara property and, after a discussion among themselves, decided to stop the cars on the public road as they came from the estate in order to determine who was in them. Tr. 2117-19, 2238-39. There is much evidence in the record to substantiate the fact that the officers were observed by individuals present at Barbara's home, including Mrs. Barbara, during their brief drive into and out of the parking lot (See, e. g. Tr. 1902, 2436-37, 3161, 3675a, 4665) and while in the parking area Croswell observed several men move quickly from one building toward another. Tr. 760, 1233.

At about 12:50 p. m. the checkpoint was set up on the public road. Though the police car was at times blocking the road (Tr. 1187-88), for the most part it was drawn up on an adjacent field and the cars were waved to a halt. See Tr. 1261.

Several vehicles that arrived at the checkpoint were allowed to pass through without being stopped, because the occupants were known to Sgt. Croswell and he foresaw no difficulty in "checking them out" later, if necessary. Tr. 2120-22. When defendant Cannone's car arrived, Cannone was found to be lacking his automobile registration. He lived in the area, was known to Sgt. Croswell, and Sgt. Croswell merely sent him home to get his registration and report to the Vestal, N. Y. substation (Tr. 2121) which Cannone voluntarily did. Defendant Turrigiano, whose alcohol violation reputation was also known to Croswell, arrived at about the same time, and he too was merely told to proceed unaccompanied to the Vestal station. Tr. 2122.

Between 1:00 and 2:00 p. m. a car driven by defendant Bufalino arrived. One of the passengers in that car was conspirator Vito Genovese, whom Croswell knew had an extensive criminal background. When Genovese refused to answer any questions he was not pressed to do so, and after 15 or 20 minutes the Bufalino car was allowed to proceed on its way. Tr. 2125-26.

At approximately 2:00 p. m., Croswell was informed that men had been observed running through the woods on or near the Barbara estate. Tr. 2122. It was a rainy and rather raw fall day. At this point, according to Sgt. Croswell, "* * * we believed then that we were right in our assumption that something was going on up there, and very possibly an alcohol conspiracy." Tr. 2123. After 2:00 p. m. Croswell set up a procedure whereby the persons stopped were sent to Vestal rather than being questioned on the open road.⁶ It was at that time raining, the police had very limited personnel, and the cars leaving the Barbara estate had begun to do so with such rapidity that a "pile up" on the road was beginning to take place. Tr. 2124-28.

No one objected to going to the Vestal station. There, the men were questioned to elicit name, age, address, occupation and criminal record. They were also asked their purpose for being at Apalachin. Once a person was thus identified he continued on his way and the men were questioned as quickly as possible....