U.S. v. Moran
| Decision Date | 05 January 2005 |
| Docket Number | No. 1:03-CR-452.,1:03-CR-452. |
| Citation | 349 F.Supp.2d 425 |
| Parties | UNITED STATES of America, v. Robert P. MORAN; Chance E. Heffner; James H. Mathis; Faith Burke; Donald Lashway; David L. Cook; and Thomas A. Corigliano, Defendants. |
| Court | U.S. District Court — Northern District of New York |
Hon. Glenn T. Suddaby, United States Attorney, Syracuse, NY (David M. Grable, Assistant U.S. Attorney, of counsel), Attorney for United States, Northern District of New York.
Kevin Mulroy, Syracuse, NY, for Defendant, Robert P. Moran.
Office of Federal Public Defender, Albany, NY (Kent B. Sprotbery, of counsel), Attorney for Defendant Chance E. Heffner.
Roche Corrigan Mccoy & Bush, Albany, NY (Joseph M. Mccoy, of counsel), Attorney for Defendant James H. Mathis.
Tobin & Dempf, Albany, NY (Kevin A. Luibrand, of counsel), Attorney for Defendant James H. Mathis.
Ackerman, Wachs & Finton, Albany, NY (Fred Stanton Ackerman, Andrew M. Purrott of counsel), Attorneys for Defendant Donald Lashway.
Kevin E. McCormack, Syracuse, NY, for Defendant David L. Cook.
Frank Policelli, Utica, NY, Attorney for Defendant Thomas A. Corigliano.
TABLE OF CONTENTS
I. INTRODUCTION ..................................................................432
II. BACKGROUND ....................................................................433
A. Initial Investigation ......................................................433
B. June 16, 2003 Eavesdropping Warrant — Residence Telephone -1193 ............435
C. July 15, 2003, Eavesdropping Warrant — Cellular Telephone -2285 ............436
D. Extension of June 16 Warrant (-1193) .......................................438
E. August 1, 2003, Eavesdropping Warrant ......................................439
F. Extension of July 15 Warrant (-2285) .......................................443
G. Search Warrant .............................................................444
III. STANDARDS .....................................................................453
A. Eavesdropping Warrants .....................................................453
B. Search Warrant .............................................................455
C. Probable Cause .............................................................456
IV. DISCUSSION ....................................................................456
A. Moran ......................................................................456
1. 2518 (1)(c), 2518(3)(c) — Need for Wiretap ..............................456
2. Misstatements and Omissions — Wiretap Applications ......................461
3. 18 U.S.C. § 2518(5) — Minimization .................................464
4. Search Warrant ..........................................................465
5. Miscellaneous Motions ...................................................466
6. GPS Device ..............................................................467
B. Heffner ....................................................................468
C. Lashway ....................................................................470
D. Cook .......................................................................473
E. Corigliano .................................................................478
1. Omnibus Motion ..........................................................478
2. Motion to Dismiss the Indictment ........................................479
V. CONCLUSION ....................................................................481
A. Moran ......................................................................481
B. Heffner ....................................................................481
C. Lashway ....................................................................482
D. Cook .......................................................................482
E. Corigliano .................................................................482
The defendants were charged with narcotics trafficking offenses in violation of 21 U.S.C. § 846 and 18 U.S.C. § 1 (1 count); 21 U.S.C. § 841 and 18 U.S.C. § 2 (7 counts); and 18 U.S.C. §§ 922(g) and 924(a)(2) (1 count), in a second superseding indictment dated April 15, 2004. Defendant Robert P. Moran, Jr., Esq. ("Moran") filed omnibus motions seeking miscellaneous relief including suppression of evidence derived from a telephone wiretap warrant issued on June 16, 2003, and thereafter extended; a cellular telephone wiretap warrant issued on July 15, 2003, and thereafter extended; a search warrant issued on August 17, 2003; and the warrantless use of a GPS tracking device on his vehicle. Defendant Chance E. Heffner ("Heffner") moved to suppress all physical evidence seized pursuant to the search warrant at his residence, 403 Fishing Rock Road, and from his vehicles (a 1997 Mercury sedan, a 1972 Winnebago, and a 1985 Harley Davidson motorcycle). Defendant Donald Lashway ("Lashway") filed an omnibus motion on March 12, 2004, and a supplemental motion to suppress on May 28, 2004. Defendant David L. Cook ("Cook") filed an omnibus motion on February 11, 2004. He subsequently withdrew that portion of the motion seeking discovery pursuant to Fed.R.Crim.P. 16. Cook filed a supplemental motion to suppress on June 2, 2004. Defendant Thomas A. Corigliano ("Corigliano") filed an omnibus motion on June 2, 2004.
The government opposes each defendants' motions. Oral argument was heard on June 22, 2004. Decision was reserved.
On July 20, 2004, Corigliano filed a motion to dismiss the indictment. The government opposed. Corigliano's motion was taken on submission without oral argument.
In the spring of 2003 the Oneida County Sheriff's Department formed a gang intelligence detail, to which Investigator Keith C. Grogan ("Grogan") was appointed. The gang intelligence detail was formed to gain, gather, and share intelligence regarding gang activity in and around Oneida County in cooperation with other law enforcement agencies. Grogan, a fourteen-year veteran of the Oneida County Sheriff's Department, developed a confidential informant ("CI") in April 2003, in the course of pursuing the goals of the gang intelligence detail. The CI informed Grogan about local motorcycle clubs and the alleged distribution of methamphetamine.
According to Dennis Tomasone ("Tomasone"), a Special Investigator for the New York Attorney General's Organized Crime Task Force, on April 16, 2003, two members of the Hell's Angels Motorcycle Club ("Hell's Angels"), Keith Gagnon ("Gagnon") and Heffner, were seen exiting the Hell's Angels Troy, New York, club house. They were followed to 403 Fishing Rock Road, Middleville, New York, where surveillance of them was discontinued because of the difficulties inherent in conducting physical surveillance of a rural location. It was later determined that Gagnon and Heffner were residing at 403 Fishing Rock Road.
The telephone toll records for 403 Fishing Rock Road (315-891-3719) were obtained by subpoena. Review of the telephone log from February 6, 2003, through April 24, 2003, revealed calls to the Hell's Angels' Troy club house; two telephone calls to 315-336-1410 ("-1410"), Moran's law office in Rome, New York; and ninety-eight (98) calls to 315-337-1193 ("-1193"), Moran's residence at 6196 Hawkins Corners Road, Lee Center, New York ("Hawkins Corners residence"). Telephone toll records were also obtained by subpoena for Verizon cellular telephone 518-339-1890, which was listed to a Keith Gagnor, Palmyra, Me., an address sometimes used by Gagnon. There were twenty-two numbers in common between that cellular telephone and the 403 Fishing Rock Road telephone.
A comparison of the telephone log for -1193, also obtained by subpoena, revealed five numbers in common with Gagnon's residence or cellular telephone for the time period March 1, 2003, to April 24, 2003. This review also revealed eighteen calls to the 403 Fishing Rock Road telephone. Five calls were made to 518-273-3230, a number listed to Flesh Jess Tattoos, which is owned by a member of the Troy Hell's Angels. Twenty-two calls were made to 518-838-9967, a number listed to the girlfriend of Lashway, who is a Troy Hell's Angel. Eleven calls were made to 518-589-0411, which was listed to an address that is the residence of Edward J. ("Hartery"), a Troy Hell's Angel. One call was made to 607-343-0391, a number listed to the wife of Timothy Mancini, the President of the Red Devils Motorcycle Club, a Hell's Angels affiliate. Eight calls were made to numbers (cellular and home) listed to Robert W. Moran1 ("Bugsy Moran"), a Hell's Angel in Rochester, New York.
On April 20, 2003, New York State Trooper Daniel C. Snyder, Jr. ("Snyder") observed a motorcycle with a loud exhaust, being driven by an operator displaying the Hell's Angels' colors, enter the parking lot of a convenience store in Marcy, New York. Snyder, intending to investigate the loud exhaust, parked across the street. The motorcycle operator sat on the curb and made a cellular telephone call when he saw the trooper. After waiting about forty minutes, Snyder pulled into the parking lot of the convenience store so that his partner could go inside. He observed the motorcycle to have New York Registration number 66DA83. He and the motorcycle operator engaged in a conversation, during which the motorcycle operator stated that he was lost and was looking for Lee Center, but that his friend was coming from Lee Center to get him. In a short time a Toyota Sport Utility Vehicle ("SUV") with New York State registration CLC 7851 pulled up. The motorcycle followed the SUV to...
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