U.S. v. Kaczowski, No. 98-CR-47E.

• Court: United States District Courts. 2nd Circuit. United States District Court of Western District of New York
• Writing for the Court: Elfvin
• Citation: 114 F.Supp.2d 143
• Docket Number: No. 98-CR-47E.
• Decision Date: 22 September 1999
• Parties: The UNITED STATES of America v. Paul KACZOWSKI (Counts 1, 2 & 3) Bruce Ziminski (Counts 1, 2 & 3) Frank Masterana (Counts 1-5)

114 F.Supp.2d 143 The UNITED STATES of America
v.
Paul KACZOWSKI (Counts 1, 2 & 3) Bruce Ziminski (Counts 1, 2 & 3) Frank Masterana (Counts 1-5) No. 98-CR-47E. United States District Court, W.D. New York. September 22, 1999.

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Denise E. O'Donnell, United States Attorney, Anthony M. Bruce, Assistant United States Attorney, of Counsel, Buffalo, NY, for Government.

Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria, Herbert L. Greenman, of Counsel, Buffalo, NY, for Defendant Kaczowski.

Dennis C. Gaughan, Hamburg, NY, for Defendant Masterana.

MEMORANDUM and ORDER

ELFVIN, District Judge.

Paul Kaczowski, a defendant herein, has objected to the Report and Recommendation of the United States Magistrate Judge Leslie G. Foschio as filed August 24, 1999 in this case.

Mr. Kaczowski, along with two other gentlemen, was indicted April 24, 1998 for having (COUNT ONE) conspired to violate 18 U.S.C. § 1955 by doing certain acts as part of an illegal gambling business — a bookmaking operation which accepted wagers on sporting events — and (COUNT TWO) conducted etc. such bookmaking operation and (COUNTS THREE, FOUR and FIVE) used interstate and international telephone facilities to carry on such bookmaking operation. Fifty-two overt acts are set forth in support of the charges in COUNT ONE. They concern meetings and telephone conversations in which one or more of the three defendants met or conversed by telephone with an unindicted individual — usually one Joseph Zambito — and, usually, provided "line information" to and, at times, accepted wagers from Zambito or another person. COUNT TWO charges that the three defendants and others "conducted, financed, managed, supervised, directed and owned" an unlawful sports bookmaking operation. COUNT THREE charges that the three defendants and others utilized interstate and international telephone facilities in February and March of 1996 to promote and carry on the sports bookmaking operation. COUNTS FOUR and FIVE charge Masterana with such utilization on February 24, 1996 and March 8, 1996, respectively.

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Masterana and Kaczowski moved to dismiss the Indictment or to suppress testimony and other evidence garnered from interceptions of telephone conversations. They assert that that which is set forth in the Indictment does not charge a federal offense, in large part because the sports bookmaking operation and actions in essential support thereof were not illegal in that foreign country in which it and they were carried out.

The undersigned has devoted much thought and attention to whether that which is set forth in this Indictment sets forth federal criminology and, more importantly, how the trial jury is going to be able to distinguish between what may merely facially be criminal and what actually is a violation of Federal and State laws. Very possibly, activities here — including the use of interstate and foreign communication facilities — were not actually violative of the Federal laws set forth in the Indictment but facially they were. The jury and the undersigned are going to have be on their respective toes in determining whether and when activities occurring here were in themselves criminal — peering into and through the evidentiary morass to determine whether certain acts, facially criminal in their nature, actually occurred here as opposed to at that offshore facility where and from which the gambling mainly occurred — or occurred in toto. If the main or major gambling operation was at the offshore site — as it well appears to have been — did any significant part or phase thereof occur here and, if it did, was such part or phase violatory of the pertinent laws of New York State and of the United States of America? There can be no answer to such now and the charges against the defendants will stand. On trial there must be a point-by-point — even a minipoint-by-minipoint — analysis of and ruling upon what the prosecutor will be seeking to place before the trial jury for its consideration.

Meanwhile, defendant Kaczowski's Objections to the Report and Recommendation of Magistrate Judge Foschio are overruled and the prosecution shall proceed.

REPORT AND RECOMMENDATION

FOSCHIO, United States Magistrate Judge.

JURISDICTION

This case was referred to the undersigned on May 1, 1998 by the Hon. John T. Elfvin for Report and Recommendation on all dispositive motions. It is currently before the court on Defendant Masterana's motion to dismiss the indictment, filed January 14, 1999 (Docket Item No. 11), and Defendant Kaczowski's motions to dismiss the indictment and to suppress testimony from witnesses and evidence derived from interception of telephone conversations, filed February 5, 1999 (Docket Item No. 14), and to suppress tape recorded conversations, filed June 17, 1999 (Docket Item No. 21).

BACKGROUND and FACTS

Defendants were indicted, along with Bruce Ziminski,¹ in a five count indictment on April 24, 1998 charging violations of 18 U.S.C. §§ 2(a) and (b), 371, 1084, 1952 and 1955. Specifically, Defendants are charged with aiding and abetting and conspiring to conduct, finance and own an illegal gambling business which used facilities in interstate and foreign commerce to distribute the proceeds of unlawful bookmaking and using interstate and foreign wire communication facilities between this district and the West Indies and Central America to place bets on sporting events. Defendants allegedly had telephone conversations and met with others at local restaurants where they agreed to actions on which the substantive allegations are based and also shared gambling line information and accepted wagers in connection with the sports bookmaking enterprise.

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In connection with the Government's investigation of the bookmaking operation, two electronic surveillance intercept orders were obtained on January 27, 1996 and February 28, 1996 for telephone lines maintained at an office located at Suite 111, 1325 Millersport Highway, in Williamsville, New York ("Suite 111"). Based on these orders, the Government intercepted telephone conversations in which gambling line information was provided and wagers were accepted.

As a result of his conviction on an unrelated matter, Defendant Kaczowski entered the McKean Federal Correctional Institute in McKean, Pennsylvania ("McKean Correctional Facility") in March, 1996. On March 23, 1996, the Government intercepted two telephone calls placed by Kaczowski to others outside McKean Correctional Facility from telephones located within the facility's dormitories. Posted next to each such telephone was either a red or black sign stating:

NOTICE

THE BUREAU OF PRISONS RESERVES THE AUTHORITY TO MONITOR CONVERSATIONS ON THIS TELEPHONE.

YOUR USE OF INSTITUTIONAL TELEPHONES CONSTITUTES CONSENT TO THE MONITORING. A PROPERLY PLACED TELEPHONE CALL TO AN ATTORNEY IS NOT MONITORED.

Upon entering custody at the McKean Correctional Facility, Kaczowski executed an "Acknowledgment of Inmate" form, Section 3 of which advises inmates of the prison's telephone monitoring program and that use of the telephone's constitutes consent to the surveillance. It is undisputed that several conversations of Defendant Kaczowski held over those telephones were intercepted and tape recorded by the facility.

Defendants have filed omnibus motions seeking, inter alia, dismissal of their respective charges on the grounds of facial insufficiency and double jeopardy, suppression of testimony, to suppress wiretap evidence and to suppress tapes of recorded telephone conversations made by Defendant Kaczowski while incarcerated at McKean Correctional Facility. Along with his challenge to the Title III electronic intercept orders, Defendant Kaczowski also requests a hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). The Government responded on March 1, 1999.

Oral argument was conducted on April 22, 1999. A supplemental brief was filed by Defendant Masterana on May 28, 1999. On June 17, 1999, Defendant Kaczowski filed a motion to dismiss the content of tape recorded conversations obtained while Kaczowski was incarcerated in a federal prison and further supplemented his earlier brief in accordance with the oral argument. The Government filed a response to that motion on July 22, 1999.

DISCUSSION

1. Dismissal of the Indictment

Defendants move to dismiss the Indictment as insufficient to charge an offense. Defendants claim that the Indictment fails to fairly apprise them of the conduct giving rise to the charged offenses, as required by Rule 7(c)(1) of the Federal Rules of Criminal Procedure and, as such, the Indictment does not meet constitutional notice requirements under the Sixth Amendment as to the essential facts of the offenses charged.²

Specifically, Defendant Kaczowski maintains that as the Indictment charges Defendants with committing acts outside the United States in a country in which gambling is legal, as such, the Indictment is insufficient to allege a crime. Affidavit of Herbert L. Greenman, Esq., in Support of

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Defendant Kaczowski's Omnibus Motion filed February 5, 1999 (Docket Item No. 14) ("Greenman Affidavit") at ¶ 22. Defendant Masterana argues that the Government has conceded that the placing of a bet is legal in New York and, thus, such actions provide no basis for the crimes charged. Defendant Masterana's Brief filed May 28, 1999 (Docket Item No. 19) ("Masterana Brief") at 1.

An indictment is facially valid and sufficient if it contains the elements of the offense charged, fairly informs a defendant of the charges against which he must defend, and enables a defendant to plead an acquittal or a conviction in bar of further prosecution for the same offense. Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974); United States v. Stavroulakis, 952 F.2d...