U.S. v. Civella, s. 80-1828
| Decision Date | 13 May 1981 |
| Docket Number | Nos. 80-1828,80-1829 and 80-1844,s. 80-1828 |
| Citation | 648 F.2d 1167 |
| Parties | UNITED STATES of America, Appellee, v. Nicholas CIVELLA, Appellant. UNITED STATES of America, Appellee, v. Peter TAMBURELLO, Appellant. UNITED STATES of America, Appellee, v. John TORTORA, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Robert Beaird, Kansas City, Mo., for Peter Tamburello.
Richard Knight, Kansas City, Mo., for John Tortora.
Oscar B. Goodman, Las Vegas, Nev. (argued), and Byron Neal Fox, Kansas City, Mo., for Nicholas Civella.
Ronald S. Reed, Jr., U. S. Atty., W. D. Missouri, Sheryle L. Jeans, David B. B. Helfrey, Attys., U. S. Dept. of Justice, Kansas City, Mo., William C. Bryson, Atty., U. S. Dept. of Justice, Washington, D. C. (argued), for appellee.
Before ROSS, HENLEY and McMILLIAN, Circuit Judges.
On July 18, 1980, appellants Civella, Tamburello and Tortora were convicted by a The tape recordings which were introduced into evidence at trial were obtained in the course of an ongoing investigation by federal agents which followed a series of alleged "gangland style" murders in Kansas City. On May 5, 1978, based on information that another murder was about to be committed, federal agents sought and received authority to install electronic surveillance devices on four automobiles. The application for the court order asserted that there was probable cause to believe that an "enterprise" existed which was involved in a pattern of "racketeering activity" in violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962(c) and (d). The application further alleged that the offenses underlying the RICO violation were violations of various Missouri statutes relating to murder, attempted murder, conspiracy to commit murder and extortion, and several federal statutes relating to conspiracy, obstruction of justice and investigations, and interference with commerce by threats and violence. 4 No evidence was obtained pursuant to this first order.
jury on a two count indictment charging them with conspiring to bribe a public official 1 and using the communication facilities in interstate commerce in carrying out their conspiracy. 2 The evidence against these men consisted primarily of nine taped recordings of their conversations, which were intercepted by federal agents pursuant to court orders dated September 24 and November 10, 1978. The defendants moved, before, during and after the trial, to suppress these recordings. The defendants also filed pretrial motions to dismiss the indictment, alleging that the grand jury was prejudiced by preindictment publicity. These motions and a subsequent motion for a new trial or for a judgment of acquittal were denied by the district court. 3 This timely appeal follows
On May 25, 1978, an extension of the May 5 order was granted which covered the same four automobiles, two tables in a restaurant in Kansas City and several additional individuals. The application contained repetitions of the probable cause cited in the May 5 application but added information relating to a murder committed on May 16, 1978, and allegations that the "enterprise" was engaged in extortionate credit practices and gambling offenses. 5 No conversations of the three appellants were overheard pursuant to this second order.
Several subsequent applications were approved by the district courts which broadened the scope of the investigation. 6 Although Nicholas Civella and Peter Tamburello were mentioned in the affidavits in support of the first two applications, Civella was first identified as a target of the interceptions in the third court order, dated July 29, 1979. Tamburello was first named as a target of the interceptions in the fifth order, dated August 30, 1978. John Tortora was never named as a target of the investigation in any of the court orders. The tape recordings which provided the evidence for their convictions for conspiring to bribe a public official were gathered pursuant to later orders, issued on September 24 and November 10, 1978.
The defendants were indicted on February 13, 1980. On May 5, 1980, several pretrial motions were filed, including motions for dismissal of the indictment due to massive prejudicial publicity and to suppress the tape recordings. A separate motion for dismissal of the indictment due to massive prejudicial publicity was filed, alleging that the United States Department of Justice and other government officials had generated On appeal the defendants again argue that the tape recordings should have been suppressed, and they repeat their allegation that the indictment should have been dismissed because of the preindictment publicity. The appellants also challenge the trial court's failure to instruct the jury on their theory of the law. For the reasons set forth below, we affirm the convictions of all three appellants.
prejudicial publicity against the defendants. An evidentiary hearing was held on these and other motions and these motions were subsequently denied in the trial court's memorandum and order of July 14, 1980.
Appellants' May 5, 1980 motion to suppress the tape recordings raised several challenges to the legality of the first two and subsequent interception orders, and these arguments are raised again on appeal. The appellants rely primarily, however, on one argument which was reasserted in a memorandum in support of their motion for a new trial, in light of United States v. Anderson, 626 F.2d 1358 (8th Cir. 1980), cert. denied, -- U.S. --, 101 S.Ct. 1351, 67 L.Ed.2d 336 (1981), which was filed by this court on August 7, 1980.
The appellants contend that this court's decision in Anderson confirms their argument that the May 5 and May 25 orders were issued without probable cause. In Anderson this court addressed the issue of what constitutes an "enterprise" for purposes of the RICO statute, and the panel's decision in that case raises serious questions about whether the affidavits and the applications of the government in this case provided probable cause to support its theory that an "enterprise," in fact, existed. It is further asserted that if the May 5 and May 25 orders were issued without probable cause, then all of the subsequent orders, which were based on information obtained pursuant to the initial orders, must also be illegal.
In Anderson the defendants, both county judges, were convicted of substantive RICO violations for accepting bribes and kickbacks in their capacities as county purchasing agents, in violation of 18 U.S.C. § 1962(c) and (d):
(c) It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt.
(d) It shall be unlawful for any person to conspire to violate any of the provisions of subsections (a), (b), or (c) of this section.
(Emphasis supplied.) On appeal, this court concluded, however, that the defendants' scheme of defrauding their respective counties did not constitute an "enterprise" within the meaning of the statute because the set of facts which were asserted to prove the existence of the enterprise namely, the scheme of accepting bribes were the very same facts which were asserted to prove the element of "a pattern of racketeering activity. 7 In the panel's view, the element of the crime which involved participation in an "enterprise" required a showing of a "discrete economic association existing separately from the racketeering activity." United States v. Anderson, supra, 626 F.2d at 1372 (emphasis supplied). Thus, the court, in overturning the convictions of the defendants on the counts alleging RICO violations held that Congress intended that the phrase "a group of individuals associated in fact although not a legal entity," as used in its definition of the term "enterprise" in section 1961(4), to encompass only an association having an ascertainable structure which exists for the purpose of maintaining operations directed toward an economic goal that has an existence that can be defined apart from the commission of the predicate acts constituting the "pattern of racketeering activity."
Id. 8
Based on the interpretation of the RICO statute set forth in Anderson, the appellants contend that the tape recordings in this case should have been suppressed. Since the May 5 and May 25 applications and orders alleged no activities of the suspected enterprise beyond violations of state and federal statutes which are listed in 18 U.S.C. § 1961(1) as the activities which constitute "racketeering activity," 9 it is claimed that there was no probable cause to support the alleged RICO violation because there was no evidence of a "discrete economic association existing separately from the racketeering activity."
We decline to reach the merits of the appellants' challenge to the May 5 and May 25 orders, however, for two reasons. In the first place, the appellants have no "standing" to challenge the two court orders. 10 Second, we find no compelling reason for applying the Anderson decision retroactively in this case.
The two court orders based on alleged RICO violations provide no grounds for the appellants' fourth amendment claims. Our review of the case law and the federal wiretap statute 11 indicates that a defendant may challenge evidence gathered pursuant to an interception order only if it is shown "that it was directed at him, that the Government intercepted his conversations or that the wiretapped communications occurred at least partly on his premises." United States v. Williams, 580 F.2d 578, 583 (D.C.Cir.), cert. denied, 439 U.S. 832, 99 S.Ct. 112, 58...
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