U.S. v. Bellomo
| Decision Date | 17 January 1997 |
| Docket Number | No. 96 CR 430(LAK).,No. S1 96 CR 430(LAK).,96 CR 430(LAK).,S1 96 CR 430(LAK). |
| Citation | 954 F.Supp. 630 |
| Parties | UNITED STATES of America, v. Liborio BELLOMO, et al., Defendants. |
| Court | U.S. District Court — Southern District of New York |
Nelson Boxer, Maria Barton, Assistant United States Attorneys, Mary Jo White, United States Attorney, Jack Litman, Litman, Asche, Gioella & Bassin, Michael Ross, LaRossa, Mitchel & Ross, New York City, for Defendant Liborio Bellomo.
David Breitbart, Alan S. Futerfas, New York City, for Defendant Michael Generoso.
Jeffrey Hoffman, Hoffman & Pollack, New York City, for Defendant James Ida.
Alan Polak, New York City, for Defendant Nicholas Frustaci.
Mark Herman, Herman & Beinin, New York City, for Defendant John Schenone.
Joel Winograd, Winograd & Winograd, New York City, for Defendant Anthony Pisapia.
Lisa Scolari, New York City, for Defendant Thomas Barrett.
Gerald LaBush, New York City, for Defendant James Pisacano.
Paul Brenner, for Defendant Joseph Pisacano.
Diarmuid White, New York City, for Defendant Vincent Romano.
Phyllis Mingione, New York City, for Defendant Colombo Saggese.
Michael Washor, New York City, for Defendant Louis Zacchia.
Kenneth Wirfel, New York City, for Defendant Leonard Cerami.
Ralph Fresolone, Hauppauge, NY, for Defendant Michael Autuori.
Howard Jacobs, for Defendant Louis Ruggiero, Sr.
Harold Borg, Kew Gardens, NY, for Defendant Albert Setford.
David Wikstrom, for Defendant Vincent Batista.
The original indictment in this case contains sixty counts against a total of 19 defendants. The superseding indictment charges ten of those defendants with much the same offenses. This opinion disposes of the defendants' pretrial motions with respect to both indictments to the extent those motions were not resolved previously.1 The matters remaining for decision include motions to (1) suppress wiretap evidence from a cellular telephone; (2) dismiss a racketeering act on the ground that it does not state an offense; (3) dismiss a racketeering act on double jeopardy or collateral estoppel grounds; (4) sever the trials of various defendants; (5) dismiss the forfeiture allegations in the indictment as to certain defendants; and (6) vacate the pretrial restraint of certain defendants' substitute assets.
The core of the indictments are charges under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq. ("RICO"). The enterprise is the alleged Genovese organized crime family, said to be one of the five "families" that reportedly dominate organized crime in the New York area. Twelve of the defendants,2 including all ten named on the superseding indictment, are said to be members or associates of the family. They are charged in counts one and two with conspiring to conduct and conducting the affairs of the enterprise through a pattern of racketeering activity including murder, conspiracy to murder, solicitation to murder, extortion, attempted labor racketeering, operation of illegal bookmaking and gambling businesses, loansharking, money laundering, mail and wire fraud, obstruction of justice, and interstate transportation of stolen property. 18 U.S.C. §§ 1962(c), 1962(d). Other counts of the indictments charge these defendants with a wide variety of substantive offenses, all or most of which are alleged as RICO predicate acts in the first two.
The seven other defendants are not charged with violation of RICO. Louis Ruggiero, Sr. is charged in counts nine and ten with murder and conspiracy to murder, although the murder and murder conspiracy are charged as RICO predicate acts against certain other defendants. In counts sixteen through twenty-one, Albert Setford, Colombo Saggese, Joseph Pisacano, James Pisacano, Vincent Batista, and Vincent Romano, in addition to a number of the RICO defendants, are charged with conducting illegal bookmaking businesses and/or transmitting wagering information via wire.
In an order dated November 3, 1994, Honorable Milton Pollack authorized, for thirty days, the interception of communications on a cellular phone registered to a company named IPPI and used by James Ida. Judge Pollack subsequently renewed this order for another thirty days on December 7, 1994. James Ida, Liborio Bellomo and Michael Generoso move to suppress the conversations intercepted under these orders on a variety of grounds.
Ida seeks to suppress first on the ground that there was no probable cause for the issuance of the initial order.
As an initial matter, the Court notes that Judge Pollack's determination that probable cause existed for the interceptions is entitled to substantial deference. See United States v. Wagner, 989 F.2d 69, 72 (2d Cir.1993) (). Therefore, if this Court determines that Judge Pollack had a substantial basis for his finding of probable cause, Ida's argument must be rejected. Furthermore, any doubt about the existence of probable cause will be resolved against the challenge to Judge Pollack's determination. See Illinois v. Gates, 462 U.S. 213, 237 n. 10, 103 S.Ct. 2317, 2331 n. 10, 76 L.Ed.2d 527 (1983).
Probable cause is not an especially demanding standard in this context. "`[O]nly the probability, and not the prima facie showing, of criminal activity is the standard of probable cause.'" Id. at 235, 103 S.Ct. at 2330 (quoting Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 590-91, 21 L.Ed.2d 637 (1969)). In assessing the proof presented by the government on the issue of probable cause, the court must "make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before [it], including the `veracity' and `basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." Id. In other words, the government's affidavit in support of probable cause "must be read as a whole, and construed in a realistic and common sense manner, so that its purpose is not frustrated." United States v. Ruggiero, 824 F.Supp. 379, 398 (S.D.N.Y.1993), aff'd, 44 F.3d 1102 (2d Cir.1995) (citing United States v. Harris, 403 U.S. 573, 577-79, 91 S.Ct. 2075, 2078-80, 29 L.Ed.2d 723 (1971)).
Ida attempts to pick apart the government's presentation to Judge Pollack. However, his argument ignores the admonition of cases like Ruggiero and Gates that a court must look at the government's support for probable cause as a whole. The affidavit taken as a whole clearly provided an ample basis for Judge Pollack's finding.
The government's initial application to Judge Pollack was based upon a detailed affidavit of FBI Agent Campi. The proof of probable cause was substantial. Reliable informants stated that Ida was a high ranking member, the "consigliere," of the Genovese crime family. These sources, two of whom were identified by name and their previous reliability detailed, told the FBI that Ida held regular Monday night meetings to discuss illegal activities. The informants stated also that Ida held conversations while taking walks out-of-doors (so called "walk-and-talks") so that his conversations could not easily be recorded. Observation by law enforcement agents confirmed the existence of the walk-and-talks. Moreover, some law enforcement agents related having overheard portions of conversations during walk-and-talks that seemed criminal in nature.
The government's affidavit established that Ida was using the cellular phone to contact members and associates of the Genovese crime family. Although the phone was registered in the name of IPPI, toll records and pen registers showed that the majority of calls from the phone were to organized crime figures, none of whom was associated with IPPI, and to Ida's family, not to commercial establishments. Furthermore, an intercepted conversation from another source showed that Ida was using the cellular phone to set up the Monday meetings of his criminal crew.
The affidavit demonstrated substantial basis for belief that this crew was involved in numerous criminal activities including illegal gambling, loansharking, and robbery. Electronic surveillance had revealed conversations dealing with the cellular telephone targets concerning these illegal activities, and sources informed that the crew was engaged in such activity. This evidence, taken as a whole, constituted a strong showing that Ida had used, and would continue to use, the cellular phone to discuss the various criminal activities specified in the government's application.
In addition, the affidavit adduced evidence suggesting that Ida used the phone to communicate about alleged money laundering. It gave reason to believe that Ida had income beyond his means and that he apparently used other persons' names to hide his assets. Specific incidents of Ida's apparent use of others' names in purchasing expensive items were shown, some involving James Hickey, a principal in IPPI. Furthermore, information possibly linking Hickey to previous Genovese money laundering schemes was presented. While Ida argues that IPPI was a legitimate business, the FBI's showing of Ida's suspiciously large net worth and his penchant for making large purchases in other people's names, coupled with Hickey's alleged complicity in hiding assets for Ida as well as others, established probable cause to believe that money laundering would be discussed over the cellular phone.
Ida challenges also the first renewal order authorizing the continued interception of conversations over the...
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