U.S. v. Commito
| Decision Date | 01 November 1990 |
| Docket Number | 89-10512 and 89-10513,89-10510,Nos. 89-10509,89-10511,s. 89-10509 |
| Citation | 918 F.2d 95 |
| Court | U.S. Court of Appeals — Ninth Circuit |
| Parties | UNITED STATES of America, Plaintiff-Appellant, v. Angelo T. COMMITO; Carl A. Mattison; Monica E. Oss, Defendants-Appellees. UNITED STATES of America, Plaintiff-Appellant, v. Angelo T. COMMITO, Defendant-Appellee. UNITED STATES of America, Plaintiff-Appellant, v. Angelo T. COMMITO; Elliott F. Kusel; Marc L. Kusel; Cheryl E. Fyten, Defendants-Appellees. UNITED STATES of America, Plaintiff-Appellant, v. Angelo T. COMMITO; Elliott F. Kusel; Marc L. Kusel, Defendants-Appellees. |
Rory K. Little, Asst. U.S. Atty., Chief Appellate Section, and Geoffrey A. Anderson, Asst. U.S. Atty., Chief, Organized Crime Strike Force, San Francisco, Cal., for plaintiff-appellant.
Harry L. Hellerstein, Asst. Federal Public Defender, San Francisco, Cal., for defendant-appellee Commito.
Brian H. Getz, San Francisco, Cal., for defendant-appellee Cheryl E. Fyten.
Randy Sue Pollock, San Francisco, Cal., for defendant-appellee Mark L. Kusel.
Frank O. Bell, San Francisco, Cal., for defendant-appellee Elliott F. Kusel.
Frank R. Ubhaus, Ubhaus & Collins, San Jose, Cal., for defendant-appellee Mattison.
Appeal from the United States District Court for the Northern District of California.
Before GOODWIN, Chief Circuit Judge, BROWNING and RYMER, Circuit Judges.
The United States appeals the suppression of evidence obtained by means of a wiretap authorized pursuant to 18 U.S.C. Secs. 2510 et seq. The Government argues that the affidavit accompanying its application contained facts sufficient to demonstrate necessity for the wiretap as required by Secs. 2518(1)(c), (3)(c). We agree and reverse.
The affidavit in question detailed defendant Angelo Commito's business connections to the hierarchy of an organized crime group referred to as "La Cosa Nostra" or "LCN", the history of his involvement in a number of questionable business arrangements with various labor figures, and descriptions given by two confidential informants concerning Commito's earlier LCN connections and labor racketeering schemes. The affidavit also recounted in detail the events and results of the FBI's ten-month undercover investigation of Commito's operations begun in December 1985. Specifically, it explained how, despite having won confidence sufficient to receive an illegal kickback offer from Commito in consideration for his business, the undercover agent had failed to learn the precise means by which Commito and one of his associates concealed such illegal payments, the names of Commito's other associates, and the nature of other similar deals Commito professed to control. The affidavit explained how pen register coverage and telephone toll records obtained during the ten-month undercover investigation indicated repeated telephone contacts made among Commito and other suspects. These records indicated only that calls were made, not what was communicated.
Finally, the affidavit addressed why normal investigative techniques, such as physical surveillance, undercover informants, records subpoenas, search warrants, and grand jury subpoenas were not reasonably likely to succeed in this case. With regard to physical surveillance, the affidavit first noted its limited helpfulness and then stated that Commito and his associates had demonstrated "sensitivity to surveillance" by, among other methods, driving in "erratic" ways in order to detect surveillance. It was also noted that the residences of Commito and a fellow suspect were situated so as to make prolonged surveillance difficult, the one home being located in isolation behind a tall fence and the other, in a residential community where unknown people or cars would be conspicuous. The affidavit justified the nonuse of undercover informants by noting their limited helpfulness in general and then stating that the suspects were so secretive about their numerous business dealings in dealing with the undercover agent that their revealing the needed information to others was unlikely. Telephone call-record analysis, the affidavit stated, would be unhelpful because it would not establish who made the calls or for what purpose. In ending, the affidavit explained why the use of overt investigative techniques would be unproductive in this case. Records subpoenas, it was stated, would be useless in finding kickback checks that had been disguised, coded, and laundered, as Commito promised they would be to the undercover agent; search warrants would produce neither the full scope of Commito's schemes nor the identity of his many associates; and LCN members, sworn to secrecy on pain of death, would be unhelpful before a grand jury. Moreover, overt methods "would probably only alert the suspects to the investigation."
We hold that the government's affidavit provides a sufficiently detailed description of the various procedures that had been used unsuccessfully to investigate the defendant and his associates. The affidavit's explanations for not using physical surveillance, undercover informants, or the overt investigative techniques of records and grand jury subpoenas are also satisfactory.
The sole unsatisfactory statements appear to be those concerning the nonuse of search warrants and telephone records. "Bald conclusory statements without factual support are not enough." United States v. Martinez, 588 F.2d 1227, 1231 (9th Cir.1978). " '[T]he affidavit [read in its entirety] must show with specificity why in this particular investigation ordinary means of investigation will fail.' " United States v. Ippolito, 774 F.2d 1482, 1486 (9th Cir.1985), quoting United States v. Robinson 698 F.2d 448, 453 (D.C.Cir.1983) (per curiam) (emphasis in original); see also Martinez, 588 F.2d at 1231. In light of the many assertions that are supported by specific probative facts, the few conclusory statements explaining the nonuse of search warrants and telephone...
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