United States v. Albertelli

• Decision Date: 29 June 2012
• Docket Number: Nos. 09–2213,09–2606,09–2478,10–1214.,s. 09–2213
• Citation: 687 F.3d 439,88 Fed. R. Evid. Serv. 1099
• Parties: UNITED STATES of America, Appellee, v. Gisele ALBERTELLI, Defendant, Appellant. United States of America, Appellee, v. Arthur Gianelli, Defendant, Appellant. United States of America, Appellee, v. Frank Iacaboni, Defendant, Appellant. United States of America, Appellee, v. Dennis Albertelli, a/k/a Fish, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

687 F.3d 439

88 Fed. R. Evid. Serv. 1099

UNITED STATES of America, Appellee,

v.Gisele ALBERTELLI, Defendant, Appellant.

United States of America, Appellee,

v.Arthur Gianelli, Defendant, Appellant.

United States of America, Appellee,

v.Frank Iacaboni, Defendant, Appellant.

United States of America, Appellee,

v.Dennis Albertelli, a/k/a Fish, Defendant, Appellant.

Nos. 09–2213, 09–2478, 09–2606, 10–1214.

United States Court of Appeals,First Circuit.

Heard March 6, 2012.

Decided June 29, 2012.

Patricia A. DeJuneas, by appointment of the court, with whom Robert L. Sheketoff, by appointment of the court, was on brief for appellant Arthur Gianelli.

Alan P. Caplan for appellant Frank Iacaboni.

Richard B. Klibaner, by appointment of the court, with whom Klibaner & Sabino was on brief for appellant Dennis Albertelli.

Brian J. Kelly, by appointment of the court, for appellant Gisele Albertelli.

Mark T. Quinlivan, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief for appellee.

Before BOUDIN, Circuit Judge, SOUTER,^* Associate Justice, STAHL, Circuit Judge.

BOUDIN, Circuit Judge.

A federal jury convicted Arthur Gianelli, Dennis Albertelli (“Albertelli”), Frank Iacaboni, and Albertelli's wife Gisele (“Gisele”) of racketeering, racketeering conspiracy or both, and a host of other federal crimes, incident to their years-long participation in a criminal organization responsible for a large illegal gambling operation. Gianelli headed the group, with Albertelli serving as the second-in-command.

The charged criminal conduct involved four operations: the first three were different flavors of continuing illegal gambling businesses—sports betting, “football cards,” and video poker—that spawned a variety of criminal support activities such as money laundering, usurious lending, and extortionate collection of credit; the fourth comprised a single venture by the three male defendants (but excluding Gisele) seeking to burn down a business in North Reading, Massachusetts.

The indictment used at trial, as narrowed by dropping various counts and other defendants, contained several hundred counts against the remaining four already named; but most involved individual transactions designated as money laundering. The remaining 25 or so charged racketeering conspiracy, racketeering, illegal gambling business, transmission of wagering information, money laundering conspiracy, interstate travel in aid of racketeering, extortionate collection of credit, extortionate collection of credit conspiracy, and five variations of arson and extortion crime directed to the planned burning down of the North Reading business.¹

Before trial, the defendants jointly moved to suppress evidence obtained through a series of wiretaps, arguing in relevant part that the application for the initial wiretap—upon which all subsequent interceptions were based—was not properly authorized, did not show the wiretap was necessary, and was not supported by probable cause. The district court, after hearing argument and reviewing the materials submitted, denied the motion in a published opinion. United States v. Gianelli, 585 F.Supp.2d 150 (D.Mass.2008).

There followed a trial that stretched over several weeks and included extensive testimony and wiretap evidence directed to the operations of the group, individual transactions, and the roles of the individual defendants. Ultimately the jury convicted all four defendants of nearly all of the charges, acquitting each defendant on between one and four counts. Each was convicted of racketeering, racketeering conspiracy or both.

The defendants were later sentenced to terms of imprisonment as follows: Gianelli, 271 months; Albertelli, 216 months; Iacaboni, 183 months; and Gisele, 21 months. Each of the defendants now appeals, but with a few exceptions noted below the issues raised on appeal are common to all of the defendants. The standard of review varies by argument and whether or not the argument was preserved in the district court.

Wiretaps. Organized crime cases depend heavily on wiretaps. For some of the activities—gambling, drug sales, money lending—there may be no “victims” to complain. Written records are often minimal. And especially where the organization is large or affiliated with a larger criminal enterprise, co-conspirators may be fearful about turning state's evidence. So surveillance and wiretaps are principal tools of investigation, and the latter require warrants.

Although a warrant issued on probable cause is enough for the police to enter and search a home, Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (“Title III”) (codified as amended at 18 U.S.C. §§ 2510 et seq.) imposes even more stringent requirements for wiretaps and also requires compliance with state law, id. § 2516(2), which in Massachusetts means Mass. Gen. Laws ch. 272, § 99(F)(1). Defendants argue that the initial wiretap application was not properly authorized under section 99(F)(1), as interpreted by Massachusetts' Supreme Judicial Court in Commonwealth v. Vitello, 367 Mass. 224, 327 N.E.2d 819 (1975).

Vitello held that an assistant district attorney may not seek a wiretap on his own authority; rather, the district attorney must “review and authorize” such an application in writing. Id. at 825, 838–39. However, so long as the matter is subject to his review, the district attorney need not sign the application but may authorize a subordinate attorney to make the application. Commonwealth v. D'Amour, 428 Mass. 725, 704 N.E.2d 1166, 1175 (1999).

In this case, the Essex County District Attorney by two letters—one to three named assistant district attorneys (“ADAs”) and the other to a Superior Court judge—authorized the three subordinates to apply to intercept calls involving Albertelli, Gianelli and another named associate occurring over three designated telephone lines; both letters were attached to the actual wiretap application signed by the named ADAs; and the district attorney's letter said that the application and any renewals would be reviewed by the district attorney or a designee.

In addition, a separate affidavit by the district attorney, offered in response to the motion to suppress in this case, attested that he had in fact “reviewed draft copies of an affidavit setting forth the probable cause and an application” prior to issuing the authorizations, and was satisfied that they complied with the relevant statutes. He also stated that he “personally reviewed every renewal application and supporting affidavit.” These documents, the district court held, satisfied section 99(F)(1).

Defendants argue they do not, emphasizing that in D'Amour the specific crimes were also identified in the letter, which was dated the same day as the application, whereas in this case the application was dated one day after the authorizing letter. The one day delay makes it possible that the district attorney read only a draft rather than the final application; but the district attorney's obligation was to superintend and take responsibility for the wiretap application, not to act as the final proofreader. See D'Amour, 704 N.E.2d at 1174–75.

Citing United States v. Smith, 726 F.2d 852, 856 (1st Cir.1984) (en banc), the defendants say that the district court should have held an evidentiary hearing on the extent of his oversight; but our remand in Smith was because “the district court did not make a particularistic inquiry” into whether the application was authorized. Id. at 860. Here, the district court did make such an inquiry and the only material dispute was not about what happened but whether the district attorney's version of what he did was sufficient oversight.

Nor do we agree that the wiretap application failed Title III's required showing that “other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous.” 18 U.S.C. § 2518(1)(c), (3)(c). Here, the warrantapplication was accompanied by a detailed 74–page affidavit by Massachusetts State Police Trooper Nunzio Orlando describing the investigation and explaining in detail the limits on what could be found without wiretaps and why individual alternatives were ineffective.

Defendants point out that these alternative techniques had allowed the agents to collect considerable information, as is evident from Orlando's affidavit, but the “partial success of the investigation did not mean that there was nothing more to be done.” United States v. Cao, 471 F.3d 1, 3 (1st Cir.2006) (emphasis omitted). For example, the affidavit explained that some of the participants in the conspiracy had not yet been identified, and that precautions taken by the known conspirators made the wiretap evidence essential to continued gathering of necessary evidence.

Defendants also complain that the affidavit contains a good deal of boilerplate, but so do judicial decisions, and for the same reason that in similar situations—here, the conduct of a bookmaking operation—much remains unchanged. The affidavit, however, included ample detail unique to this investigation, including, for example, extensive accounts of efforts at and limitations of using confidential informants, physical surveillance, and telephone record analysis.

Title III permits wiretaps to investigate “gambling” offenses generally, while the state statute—whose conditions must also be met—authorizes them for only one gambling offense: keeping or being in a place for the registering of bets. Mass. Gen. Laws ch. 271, § 17. Gianelli used an off-shore service reached by an 800 number to allow his bettors to place wagers, but the affidavit described conduct in Massachusetts of related activities such as communicating with local agents, settling disputes, and collecting payments from local bettors.

Commonwealth v. Boyle, 346 Mass. 1, 189 N.E.2d 844, 845–46 (1963), held it enough that the defendant possessed “memos between the...