U.S. v. Gotti
| Decision Date | 16 March 1999 |
| Docket Number | No. 98 CR 42(BDP).,98 CR 42(BDP). |
| Citation | 42 F.Supp.2d 252 |
| Parties | UNITED STATES of America, v. John A. GOTTI, Dominick Loiacono, Vincent Zollo, Anthony Plomitallo, Michael Zambouros, and Dennis McClain, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Gerald Shargell, Sarita Kedia, New York City, Bruce Cutler, New York City, for defendant John A. Gotti, Jr.
Barry M. Fallick, Rochman Platzer Fallick & Sternheim, New York City, for defendant Dominick Loiacono.
Robert P. Leighton, Leighton, Leighton & Leighton, New York City, for defendant Vincent Zollo.
Richard A. Rehbock, Jericho, NY, for defendant Anthony Plomitallo.
Barry E. Schulman, Brooklyn, NY, for defendant Michael Zambouros.
Dominick Porco, Scarsdale, NY, for defendant Dennis McClain.
Currently before this Court are the omnibus pretrial motions of defendants John A. Gotti, Dominick Loiacono, Vincent Zollo, Anthony Plomitallo, Michael Zambouros, and Dennis McClain who are charged in various counts of the Indictment with, inter alia, racketeering, conspiracy, extortion, wire fraud, extortion in telecommunications and gambling.
In these motions which, in large part, challenge various aspects of the investigations that culminated in the indictments, the defendants seek to suppress evidence allegedly obtained as the result of illegal electronic surveillance, invalid warrants, and unconstitutional searches. In addition, defendants challenge the sufficiency of the Indictment in a number of respects and seek discovery beyond what has already been provided by the Government. What follows is this Court's resolution of the motions.
Defendant John A. Gotti seeks suppression of the fruits of electronic surveillance conducted at various times in 1994, 1995, 1996, and 1997 by state law enforcement officials acting pursuant to authorizations from New York courts. Specifically, Gotti challenges electronic interceptions of conversations (1) over a telephone at City Auto Salvage ("City Auto"), (2) over his home and office telephones, (3) over co-defendant Anthony Plomitallo's home telephone, (4) within vehicles operated by Plomitallo and Anthony Amoroso, and (5) in Gotti's office at 97-11 Sutphin Boulevard, Queens, New York. Gotti contends that suppression of the fruits of these interceptions is warranted because the applications submitted to obtain the authorizations contained insufficient averments of probable cause and insufficient showings that the premises were used for criminal activities. Co-defendant Plomitallo joins Gotti's motion with respect to his and Gotti's home telephone numbers, and the telephone at the Sutphin Boulevard location. Plomitallo's standing to join in Gotti's challenge is not contested by the Government.
The following are the various eavesdropping authorizations which Gotti contends were issued without probable cause:2
DISCUSSION
18 U.S.C. § 2518 sets out the procedures governing the authorization of wiretaps. Section 2518(3) requires a judicial determination that: (1) there is probable cause to believe that a particular type of crime has been, is being, or is about to be committed, (2) there is probable cause to believe that particular communications concerning the crime will be obtained through the wiretapping, (3) normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed or unfeasible, and (4) there is probable cause to believe that the phones to be tapped are being used for criminal purposes or by the target of the wiretap. 18 U.S.C. § 2518(3); United States v. Wagner, 989 F.2d 69, 71 (2d Cir.1993); United States v. Ambrosio, 898 F.Supp. 177, 180 (S.D.N.Y.1995).
Probable cause to authorize a wiretap "is established if the `totality of the circumstances' contained in the affidavit indicates a probability of criminal activity and that evidence of the criminal activity could be obtained through the use of electronic surveillance."3 Ambrosio, 898 F.Supp. at 181. The issuing judicial officer must "make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the `veracity' and `basis of knowledge' of persons supplying hearsay information, there is fair probability that ... evidence of a crime will be found." Gates, 462 U.S. at 238, 103 S.Ct. 2317.
Orders authorizing the interception of wire communications are entitled to a presumption of validity. Therefore, substantial deference is afforded the issuing judicial officer's determination of probable cause, Ambrosio, 898 F.Supp. at 181 (citations omitted), and doubts as to the existence of probable cause must be resolved in favor of the prior judicial authorization. Gates, 462 U.S. at 237 n. 10, 103 S.Ct. 2317. Consequently, this Court's review is not de novo but is...
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