U.S. v. Trippe

• Decision Date: 27 April 2001
• Docket Number: No. 00 CR. 585(SWK).,00 CR. 585(SWK).
• Parties: UNITED STATES of America, v. Edward TRIPPE, Bruce Becker, Andrew Adams, Samuel Ward, Bryan McGuire, and Patricia Oppito Defendants.
• Court: U.S. District Court — Southern District of New York

171 F.Supp.2d 230

UNITED STATES of America, v. Edward TRIPPE, Bruce Becker, Andrew Adams, Samuel Ward, Bryan McGuire, and Patricia Oppito Defendants.

No. 00 CR. 585(SWK).

United States District Court, S.D. New York.

April 27, 2001.

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Christopher J. Clark, United States Attorney, New York City, for Plaintiff.

Alan S. Futeras, New York City, Frank Carone, Mure & Carone PC, Brooklyn, NY, James R. Froccaro, Port Washington, NY, Ellen Resnick, Law Offices of Alan S. Fuertas, New York City, John F. Kaley, Weinberg, Kaley, Gross & Pergament, Garden City, NY, Erich Gleber, Clayman & Rosenberg, Richard W. Brewster, Howard L. Jacobs, Philip R. Edelbaum, Daniel F. Lynch, Magda Jimenez, Barrett Gravante et al, New York City, for Defendants.

MEMORANDUM OPINION AND ORDER

KRAM, District Judge.

Defendants Edward Trippe ("Trippe"), Bruce Becker ("Becker"), and Andrew Adams ("Adams") move for the following relief: (1) suppression of wiretap evidence; (2) disclosure of similar or extrinsic act evidence pursuant to Federal Rule of Evidence 404(b); (3) accelerated disclosure of Brady and Giglio material; and (4) a summary of the testimony of any expert the Government intends to call at trial. Defendant Patricia Oppito ("Oppito") moves for (1) dismissal of Count One of the Indictment; and (2) severance of her case. Defendant Bryan McGuire ("McGuire") moves for (1) a bill of particulars, and (2) disclosure of co-conspirator plea allocutions. All of the moving defendants also move to join in the motions of their co-defendants. The Court addresses each motion in turn.

BACKGROUND

On or about May 31, 2000, a grand jury in the Southern District of New York returned a seven count Indictment alleging securities fraud and mail fraud. Count One of the Indictment alleges that the object of the conspiracy was a scheme to defraud investors in two private placements of Jackpot Entertainment Magazine ("Jackpot") stock. Specifically, the conspirators allegedly agreed that bribes would be paid to stockbrokers who sold shares of Jackpot private placements, and that those bribes would be kept secret from investors. In connection with the first Jackpot private placement, Trippe, Becker and Adams, all executives of Jackpot, allegedly paid such bribes and did not disclose them to investors. With regard to the second Jackpot private placement Oppito and McGuire, registered representatives who sold securities to the public, allegedly agreed to take such bribes from Trippe, Becker and Adams.

Count Two of the Indictment charges Trippe, Becker and Adams with substantive securities fraud in connection with their activities in the first Jackpot private placement. Counts Three through Seven charge Trippe, Becker and Adams with substantive mail fraud offenses arising from their activities in the first Jackpot private placement.

On November 30, 1999, Judge Shira A. Scheindlin approved the initial application to intercept oral communications in the conference room and desk area of the offices of DMN Capital. The authorization order was based upon facts set forth in an affidavit sworn to by Federal Bureau of Investigation Special Agent Kevin Barrows (the "Barrows Affidavit"). Applications for continued interception on January 3, 2000, February 2, 2000, March 6, 2000 and April 5, 2000¹ were also approved.

DISCUSSION

I. Suppression of the Wiretap Evidence

Wiretap warrants are governed by 18 U.S.C. Section 2510 (also referred to as "Title III"). Section 2519(3)(a-d) requires that before ordering the interception of wire communications, a judge must determine, based on the facts presented in an affidavit, that (1) there is probable cause to believe that an individual is committing, has committed, or is about to commit, a crime; (2) there is probable cause that communications about the crime will be obtained through the wiretap; (3) alternative means have failed or are too dangerous or unlikely to succeed; and (4) there is probable cause to believe that the premises to be wiretapped are being used for criminal purposes or are used or owned by the target of the wiretap. See United States v. Wagner, 989 F.2d 69, 71 (2d Cir.1993). Defendants argue both that the Government failed to establish probable cause, see Defs.' Memo. at 11, and that the Government failed to use alternative investigative techniques before resorting to electronic surveillance. See id. at 13.

A. Probable Cause

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." United States v. Ambrosio, 898 F.Supp. 177, 181 (S.D.N.Y. 1995). The Defendants, however, do not argue that there was no probable cause to suspect any criminal activity but instead argue that none of the information in the Barrows Motion "amounts to probable cause to believe that [Trippe] was either committing a crime or that he would be intercepted at DMN's offices." Defs.' Memo. at 12. Specifically, Defendants allege that "while there may have been probable cause to believe that particular communications concerning the extortion of Trippe would be obtained through the interception, the affidavit lacks probable cause to believe that Mr. Trippe would be overheard on the electronic surveillance," and fails "to establish probable cause to believe that Mr. Trippe himself was committing a crime." Id.

Title III requires that a surveillance application include "the identity of the person, if known, committing the offense and whose communications are to be intercepted." 18 U.S.C. Section 2518(1)(b)(iv). The wiretap statute does not require that every person whose conversations are intercepted must be named in the application nor does it expressly prohibit the investigative agency from naming other individuals in the application. See United States v. Ambrosio, 898 F.Supp. at 184. Rather, the statute's conditions are satisfied as long as the affidavit names "an individual" for whom there is probable cause to suspect criminal activity. See id. Since nothing in the statute restricts the Government from naming in the affidavit individuals as to whom it may not have probable cause, the statute's goal of providing notice is actually furthered by naming more, rather than fewer, persons. See id.; see also United States v. Milan-Colon, No. 91 Cr. 685, 1992 WL 236218, at *16 (S.D.N.Y. Sept. 8, 1992) (holding over-inclusion of persons in wiretap affidavit is not a cause for suppression but rather "furthers the policy of preventing unreasonable invasions of privacy" by ensuring that persons will be given notice of the order and intercepted communications). "It would be anomalous to punish the government by suppressing the wiretap evidence for naming [a defendant] in the affidavit when it could constitutionally not have named him and still have intercepted his calls." United States v. Ambrosio, 898 F.Supp. at 184.

Therefore, contrary to the Defendants' assertions, the issuing Judge was not required to find that there was probable cause that Trippe himself engaged in criminal activity to issue the warrant. See United States v. Ambrosio, 898 F.Supp. at 184. Rather, the relevant inquiry is whether there was probable cause that the conversations sought to be monitored were likely to contain evidence of a crime. See id.; see also United States v. Shipp, 578 F.Supp. 980 (S.D.N.Y.1984) (holding "[t]here is no requirement that probable cause be established with respect to every defendant ultimately indicted" and that the probable cause requirement in the wiretap context is "satisfied by identification of the telephone line to be tapped and the particular conversations to be seized."). Because there is no dispute that the Barrows Affidavit provided sufficient probable cause as to the other individuals named as interceptees,² the Defendants' motion to suppress the product of the electronic surveillance is denied.

B. Alternative Investigative Techniques

The Defendants also argue that suppression is warranted because the Government failed to use alternative investigative techniques before resorting to electronic surveillance of DMN Capital's Office. See Defs.' Memo. at 13. Section 2518(1)(c) provides that any application for authorization of interception of electronic communication must include "a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous." 28 U.S.C. Section 2518(1)(c). This requirement ensures that "wiretapping is not resorted to in situations where traditional investigative techniques would suffice to expose crime." United States v. Torres, 901 F.2d 205, 231 (2d Cir.1990) (internal citations omitted).

While generalized or conclusory statements in an application are insufficient to support a showing of necessity, see United States v. Lilla, 699 F.2d 99, 104 (2d Cir.1983), the application must be viewed in a practical and common sense manner and need be only minimally adequate to support the issuing judge's determination of necessity. See United States v. Torres, 901 F.2d at 231. The statute requires only that the applicant inform the judge reviewing the application "of the nature and progress of the investigation and of the difficulties inherent in the use of normal law enforcement methods." United States v. Lombardo, No. 98 Cr. 1180, 1999 WL 305096, at *5 (S.D.N.Y. May 14, 1999). The issuing judge's determination that the Government has made adequate use of alternative investigatory techniques is entitled to substantial deference. See United States v. Wilkinson, 754 F.2d 1427, 1433 (2d Cir.1985).

Defendants argue that "the government could have achieved its objectives with less intrusive measures, namely, the assistance of its...