U.S. v. Alfano

• Decision Date: 24 March 1988
• Docket Number: No. 85-1845,85-1845
• Citation: 838 F.2d 158
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Pietro ALFANO, et al., Defendants, Salvatore Evola, Girolamo Vito Palazzolo, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 158

838 F.2d 158

UNITED STATES of America, Plaintiff-Appellant, v. Pietro ALFANO, et al., Defendants Salvatore Evola, Girolamo Vito Palazzolo, Defendants-Appellees.

No. 85-1845.

United States Court of Appeals Sixth Circuit.

Argued Sept. 25, 1986.

Decided Jan. 29, 1988.

Rehearing and Rehearing En Banc Denied March 24, 1988.

Joel M. Shere, U.S. Atty., Michael R. Mueller, argued, Detroit, Mich., for plaintiff-appellant.

Richard M. Lustig [Evola] argued, Richard P. Zipser (Palazzolo) argued, Southfield, Mich., for defendants-appellees.

Before JONES, MILBURN and BOGGS, Circuit Judges.

BOGGS, Circuit Judge.

This case involves an extensive government investigation and surveillance of an alleged conspiracy for the importation of large quantities of heroin and cocaine from Italy, involving the cooperation of a number of Americans in New York, Illinois, Wisconsin and other states, and a number of Italians primarily from Sicily. ¹

The existence of an underlying conspiracy among some persons is not disputed here. The dispute concerns the use at the trial of alleged conspirators of extensive tape recordings of conversations among the defendants and various admitted members of the conspiracy. These recordings were made pursuant to a warrant issued on February 3, 1984, by Chief United States District Judge John Feikens, under 18 U.S.C. Sec. 2518(3). Defendants contend that this warrant is fatally defective because it rested primarily on records of a series of telephone calls secured by the use of a pen register authorized under another warrant whose validity is not contested here. The issue is whether the evidence of a number of calls made within relatively short periods of time among defendants here and admitted conspirators, coupled with other knowledge contained in the affidavit for the wiretapping warrant, constituted probable cause for issuance of that warrant. The trial judge, District Judge Ralph Freeman, held that probable cause did not exist, and suppressed all evidence stemming from the warrant-authorized tape recordings.

The government has taken an interlocutory appeal on this issue, as a very large part of the evidence that would be submitted at the trials of defendants Samuel Evola, Girolamo Vitale, and Girolamo Palazzolo consists of materials derived from sources growing out of the suppressed wiretap. We hold that the warrant issued by Chief Judge Feikens carefully complied with the requirements of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. Sec. 2518(3), and we reverse.

I

The underlying evidence presented in the affidavit for a search warrant, which is not contested here, may be summarized as follows. The key players in our case, many of whom are related, are Salvatore Mazzurco, Pietro Alfano, Samuel Evola and Emanuele Palazzolo. Girolamo Palazzolo, a defendant in this case, is not involved in the events at issue here. He was implicated later by materials developed under the wiretap at issue here. The trial judge agreed that the underlying conspiracy existed, and the connection to it of numerous persons was clearly shown. At issue is the evidence of Evola's connection to the conspiracy, and whether it is sufficient to authorize the issuance of a warrant for a tap on his phone.

A brief description of the parties and their relationship is in order at this time. Salvatore Evola is married to the niece of Gaetano Badalamenti, whom evidence shows to be the leader of an international drug smuggling conspiracy. Badalamenti resides in Sicily. Evola lives in Temperance, Michigan, near the Ohio border and near the Detroit airport. Pietro Alfano lives in Oregon, Illinois, about 100 miles from Chicago, where he operates Alfano's Pizza, a business one mile from the Pineway Liquor Mart. Mazzurco lives and operates a pizza parlor in Long Island, New York, while Emanuele Palazzolo lives in Wisconsin. The wives of Alfano and Palazzolo are sisters.

As District Judge Freeman agreed, in his opinions suppressing the wiretap evidence, the evidence was sufficient "for a reasonable person to conclude that numerous individuals such as defendants Alfano, Mazzurco and Vincenzo Randazzo are involved in the importation and trafficking of narcotics...."

II

Given these underlying facts, the undisputed evidence of the calls detailed by the authorized pen registers and by other wiretaps not contested here presents a series of circumstances which would certainly arouse the suspicions of even a mildly cynical person. The most interesting of these phone transactions are as follows: On November 24, 1983, Alfano placed a ten minute phone call to Sicily, and three minutes later called Evola. ² On November 29, Alfano called Evola in Michigan in mid-afternoon. That evening, Evola placed a twelve minute call to Alfano, and later the same night Palazzolo called Alfano; Alfano immediately called Mazzurco and then called Sicily for ten minutes.

On December 4, Palazzolo called Evola, and six minutes later Alfano called Evola, Mazzurco and Palazzolo in rapid succession. That evening Evola called Alfano and spoke for eight minutes, and later that same night Palazzolo and Alfano traded calls. The next afternoon, Alfano called Evola for thirteen minutes. That evening Palazzolo spoke to Alfano for nearly one-half hour and, less than ten minutes later, Alfano called Evola and spoke for nearly ten minutes.

On the morning of December 12, there occurred a flurry of calls among Palazzolo, Alfano and Sicily. That afternoon, Alfano called Evola, and less than ten minutes later, Evola called Alfano and spoke for nearly fifteen minutes. Less than an hour later, Alfano called Mazzurco. On December 17, Palazzolo called Evola and fifteen minutes later Evola called Palazzolo back and spoke for fifteen minutes. Less than half an hour later, Palazzolo called Joseph Badalamenti in Mastic, New York.

There is also evidence obtained from the circumstances of travel to and from New York in late September 1983 and calls relating thereto. Those events began on September 25, with a collect call placed to Alfano's home from the vicinity of the Detroit airport and near Evola's home. The next day, Mazzurco was seen in New York receiving a brown paper bag from a known drug dealer, and then driving Alfano and Palazzolo to rent a car in Palazzolo's name. On the morning of September 27, a collect call was placed to Alfano's home from a phone along the highway from New York to Detroit. Later the same day, the rental car was returned in Toledo, Ohio. Toledo is not far from Evola's home, but distant from the homes of Alfano and Palazzolo. Two days later, Alfano and Palazzolo were again in New York, and were seen receiving a similar grocery bag from Mazzurco, which they took to a hotel room registered to a Mr. Lupo, alleged to be the alias of Badalamenti's nephew, Vincent Randazzo, a member of the conspiracy. During that same week, two calls were placed from that hotel room to Evola, as well as a call to a Brazilian individual soon arrested in a Brazilian drug raid.

The affidavits for the warrant also indicated that phone calls were made in the summer of 1983 from a pay phone at Pineway Liquor Mart to Evola, to Brazil, and to Sicily at the same numbers used for calls made from Alfano's Pizza during the same time period. This circumstance, a common counter-surveillance technique, and the use of drug-related code in intercepted discussions between Alfano and Mazzurco are also relevant in assessing probable cause for the warrant.

The question presented is whether these circumstances provide sufficient reasonable, articulable suspicion to meet the probable cause requirements for the issuance of a warrant.

III

The basic standards for a wiretap are similar to those for a search warrant, but there also must be strict compliance with Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. Secs. 2510-2520. See United States v. Weinrich, 586 F.2d 481, 487 (5th Cir.1978), cert. denied, 441 U.S. 927, 99 S.Ct. 2041, 60 L.Ed.2d 402 (1979); United States v. Feldman, 535 F.2d 1175 (9th Cir.), cert. denied, 429 U.S. 940, 97 S.Ct. 354, 50 L.Ed.2d 309 (1976). That Act was enacted for the purpose of regularizing and controlling the issuance of warrants for wiretaps. At the same time, we are instructed that there is no specific formula that must be met for a warrant, and that evidence must be judged on the totality of the circumstances and in a reasonable and common sense manner. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983). Under this standard, the question that must be decided in issuing a warrant is whether there is probable cause to believe that evidence of a crime will be uncovered.

Obviously, certainty is not required at this stage, and the exact quantum of support required has frequently been described as "a fair probability," but more than a "mere suspicion," that such evidence will be discovered. Facts can amount to a fair probability without being proof beyond a reasonable doubt or even a prima facie showing. Id. at 235, 103 S.Ct. at 2330. Since the issuing judge is in the best position to determine all of the circumstances in the light in which they may appear at the time, "great deference" is normally paid to the determination of an issuing judge. "Reasonable minds frequently may differ on the question whether a particular affidavit establishes probable cause, and we have thus concluded that the preference for warrants is most appropriately effectuated by according 'great deference' to a magistrate's determination." United States v. Leon, 468 U.S. 897, 914, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) (quoting Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 590, 21 L.Ed.2d 637 (1969)). Thus, the fact that a later trial judge or reviewing court may feel that a different conclusion was appropriate does not require, nor even authorize, the suppression of evidence gained...