U.S. v. Giacalone

• Decision Date: 05 August 1988
• Docket Number: 87-1931,Nos. 87-1924,s. 87-1924
• Citation: 853 F.2d 470
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Vito GIACALONE (87-1924), Mario Agosta (87-1931), Albert Hady (87-1932), Jack V. Giacalone (87-1933), Anthony D. Giacalone (87-1934), Defendants-Appellants. to 87-1934.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 470

853 F.2d 470

UNITED STATES of America, Plaintiff-Appellee, v. Vito GIACALONE (87-1924), Mario Agosta (87-1931), Albert Hady (87-1932), Jack V. Giacalone (87-1933) Anthony D. Giacalone (87-1934) Defendants-Appellants.

Nos. 87-1924, 87-1931 to 87-1934.

United States Court of Appeals Sixth Circuit.

Argued June 13, 1988.

Decided Aug. 5, 1988.

N.C. DeDay LaRene, Detroit, Mich., G. Robert Blakey (argued), Notre Dame University Law School, Notre Dame, Ind., for Vito Giacalone.

Robert M. Kalec, Asst. U.S. Atty., David McKeon, Sp. Atty., Detroit Strike Force, Detroit, Mich., Joseph C. Wyderko (argued), Dept. of Justice-Criminal Div., Washington, D.C., for U.S.

William E. Palazzolo, Bufalino & Palazzolo, P.C., St. Clair Shores, Mich., G. Robert Blakey (argued), Notre Dame University Law School, Notre Dame, Ind., for Mario Agosta.

Mark J. Kriger, Detroit, Mich., G. Robert Blakey (argued), Notre Dame University Law School, Notre Dame, Ind., for Albert Hady.

Neil H. Fink, Detroit, Mich., G. Robert Blakey (argued), Notre Dame University Law School, Notre Dame, Ind., for Jack Giacalone.

David F. DuMouchel, Cynthia J.H. Oberg, Detroit, Mich., G. Robert Blakey (argued), Notre Dame University Law School, Notre Dame, Ind., for Anthony Giacalone.

Before MILBURN, GUY and NORRIS, Circuit Judges.

RALPH B. GUY, Jr., Circuit Judge.

Defendants, Vito Giacalone, Jack Giacalone, Albert Hady, and Mario Agosta, appeal their convictions for conspiring to participate in the affairs of a criminal enterprise formed for the purpose of collecting illegal gambling debts, in violation of the Racketeer Influenced Corrupt Organizations Act (RICO), 18 U.S.C. Sec. 1962(d). Defendant Anthony Giacalone appeals his conviction for conducting an illegal gambling business, in violation of 18 U.S.C. Sec. 1955. Each of the defendants received prison sentences ranging from one to five years. The defendants initially entered pleas of "not guilty." However, after the district court denied two of their pretrial motions, the defendants entered conditional guilty pleas pursuant to Fed.R.Crim.P. 11 (a)(2), thereby reserving a right to appeal from the convictions and the pretrial rulings.

All of the issues raised on appeal relate to the government's collection and use of information obtained by means of electronic surveillance. Specifically, defendants contend that the district court erred by refusing to conduct an in camera hearing in order to examine the informants whose allegations were used to support the application for a wiretap.

Defendants also allege on appeal, as they did below, that the warrants authorizing the wiretaps violated four specific statutory requirements set forth in Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. Secs. 2510-20 (Title III): (1) inadequate showing of probable cause; (2) insufficient showing of the unfeasibility of alternative investigatory techniques; (3) lack of particularity; and (4) failure to minimize the extent of the scope of the electronic surveillance.

For the following reasons, the defendants' convictions are affirmed.

I.

On July 28, 1982, the government submitted an application to Judge Anna Diggs-Taylor, United States District Judge for the Eastern District of Michigan, for an order authorizing a wiretap pursuant to Title III. The application sought authorization for the interception of oral and wire communications made at the business premises of Farm Fresh Produce, Inc., a wholesale produce company in Detroit, Michigan. In the application, the government alleged that several named individuals were involved in an extortionate scheme to interfere with commerce by using threats of violence to compel customers to purchase produce from Farm Fresh, in violation of 18 U.S.C. Secs. 1951 and 1952. In support of its application, the government submitted a forty-two page affidavit from Special Agent Brian K. Rossi of the Federal Bureau of Investigation. The information contained in Agent Rossi's affidavit was obtained primarily from confidential informants who claimed to have personally observed the alleged acts of intimidation, or to have overheard conversations relating to the extortionate activities. Agent Rossi stated in the affidavit that the informants were unwilling to testify even if they were granted immunity and placed in protective custody. According to Agent Rossi, alternative investigative procedures--such as physical surveillance, infiltration of the Farm Fresh business organization, or obtaining a search warrant--were considered and rejected as unlikely to succeed or too dangerous. Moreover, Rossi stated that interviews with the extortion victims would "alert the suspects to the pending investigation and would thereby cause them to alter their modus operandi thereby frustrating the investigation."

On July 28, 1982, Judge Taylor issued an order authorizing the government to intercept oral communications at the premises of Farm Fresh Produce and the surrounding area. Judge Taylor also issued a Title III order authorizing electronic surveillance of four telephones located on the premises.

During the course of the first thirty-day period of authorized surveillance, the government was unable to obtain any information relating to the alleged extortionate scheme. The government did, however, uncover evidence of other federal crimes, including gambling. Judge Taylor was kept informed of these developments through progress reports and, based on the evidence obtained during the first thirty-day period, Judge Taylor granted the government's application for a thirty-day extension of the Title III order. Additional extensions were granted until the surveillance terminated on December 3, 1982.

On June 5, 1986, a grand jury returned a three-count indictment against the defendants. Count I of the indictment charged defendants with conspiracy to engage in a racketeering enterprise in violation of RICO, 18 U.S.C. Sec. 1962(d). Count II charged defendants with conducting an illegal gambling business in violation of 18 U.S.C. Sec. 1955, and of aiding and abetting each other in violation of 18 U.S.C. Sec. 2(a). Finally, in Count III, defendants were charged with conspiracy under 18 U.S.C. Sec. 371. The defendants pled not guilty.

On January 6, 1987, the defendants filed two motions to suppress evidence. In the first motion, defendants alleged that some of the allegations contained in the original Title III application were false. In support of their challenge to the factual accuracy of the application, the defendants submitted affidavits of their own and from some of the alleged extortion victims denying the alleged incidents of threats and intimidation. The motion concluded with the following request for relief:

Wherefore, defendants respectfully pray that this Honorable Court enter an order for an in-camera examination of the informants, for an evidentiary hearing, and upon conclusion of said evidentiary hearing, an order suppressing from evidence all Title III interceptions.

A second motion entitled "Motion to Suppress Fruits of Electronic Surveillance" was also filed on January 6, 1987. In the second motion, defendants challenged not only the original authorization order of July 28, 1982, but also the subsequent extensions granted by Judge Taylor on August 30, 1982, October 1, 1982, and November 5, 1982. The motion set forth four alleged violations of the statutory requirements of Title III. The second motion also contained a request for an evidentiary hearing on the minimization issue.

On May 15, 1987, the trial judge, Judge Suhrheinrich, conducted an in camera examination of the affiant, Special Agent Brian K. Rossi of the Federal Bureau of Investigation. Judge Suhrheinrich also interviewed four other FBI agents who had worked with the informants involved in the case. The judge did not examine the information themselves. Assistant United States Attorney Walter Kozar was also present and assisted in the examinations. None of the defense attorneys were allowed to participate in the hearing.

Following the in camera examination of the FBI agents, Judge Suhrheinrich issued an order denying defendants' motion for an in camera examination of the informants and for an adversarial evidentiary hearing on the issue of the affiant's veracity. In the memorandum opinion and order dated May 27, 1987, Judge Suhrheinrich stated:

After a thorough and careful examination of Agent Rossi and his affidavit, the Court finds no evidence to suggest Agent Rossi included a false statement in the government's affidavit. Furthermore, there is no reason to believe Agent Rossi acted in reckless disregard for the truth. The Court has no doubt as to Agent Rossi's veracity or the truthfulness of the allegations contained in his affidavit.

Accordingly, the court concluded that defendants were not entitled to an evidentiary hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), because they had failed to make a "substantial preliminary showing" that Agent Rossi had made a false statement in his affidavit, either knowingly or with reckless disregard for the truth.

On June 2, 1987, Judge Suhrheinrich issued an opinion and order denying defendants' motion to suppress the fruits of the electronic surveillance. Judge Suhrheinrich rejected defendants' arguments relating to particularity, necessity, and probable cause. The court, however, allowed the defendants an opportunity to present additional evidence regarding the issue of minimization. On June 10, 1987, Judge Suhrheinrich issued an order finding that the government had properly restricted the scope of its surveillance to the interceptions authorized under the warrants and permissible "spot checks." Consequently, defendants' suppression motion was denied and, later that same day, on June 10, 1987, defendants entered conditional guilty pleas pursuant to Fed.R.Crim. P. 11(a)(2). This appeal followed.

II.

A.

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