U.S. v. Tzannos

• Citation: 460 F.3d 128
• Decision Date: 22 August 2006
• Docket Number: No. 05-2689.,05-2689.
• Parties: UNITED STATES of America, Appellant, v. Gregory F. TZANNOS, a/k/a Gregory F. Tzannas, Defendant, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

460 F.3d 128

UNITED STATES of America, Appellant, v. Gregory F. TZANNOS, a/k/a Gregory F. Tzannas, Defendant, Appellee.

No. 05-2689.

United States Court of Appeals, First Circuit.

Heard June 8, 2006.

Decided August 22, 2006.

Michael L. Tabak, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief, for appellant.

Richard M. Egbert, with whom Patricia A. DeJuneas and Law Offices of Richard M. Egbert, P.C., were on brief, for appellee.

Before LYNCH and HOWARD, Circuit Judges, and STAFFORD,^* Senior District Judge.

LYNCH, Circuit Judge.

This is the government's appeal from a district court's suppression order.

The district court suppressed evidence, seized pursuant to a state court warrant, based on the defendant's allegations that the affidavit by a state trooper in support of the warrant application contained material misrepresentations. In essence, defendant argued, the affidavit referred to a confidential informant who did not exist.

Over the government's objections that the defendant had not made the "substantial preliminary showing" required for a hearing under Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the district court convened a hearing. The court appeared to accept the defendant's representations, and it rejected the government's request that it consider contrary information, which the government had sought to present ex parte and in camera based on its representation that doing otherwise would endanger the informant's life. Without making specific findings under Franks, the district court granted the motion to suppress. We reverse and remand with instructions to deny the motion to suppress.

I.

A. The State Search Warrant Affidavit

On August 28, 2003, Massachusetts State Trooper Pasquale Russolillo submitted an application for a search warrant to a magistrate in a state district court in East Boston, Massachusetts. Russolillo included a fourteen-page affidavit in support of the application. The affidavit made the following assertions:

Russolillo and another state trooper knew Gregory Tzannos to be involved in the bookmaking business from information from past investigations "coupled with intelligence from other informants" as well as from the confidential informant central to this case. In early July of 2003, Russolillo and another state trooper spoke to the confidential informant, "CI-1." CI-1 agreed to provide information to the troopers only if his¹ identity was not revealed.

CI-1 told the troopers that he was placing illegal bets on sporting events with Gregory Tzannos via telephone. The informant said he had placed the bets by calling (617) 567-6114 ("the 6114 line") and by speaking to Tzannos directly. The officers subpoenaed the telephone company and discovered that that number belonged to Tzannos and that it was unpublished.

They also discovered via subpoena that calls to the 6114 line had been forwarded to a separate number, (617) 846-6630, on several days in August. This was significant because bookmakers often used call forwarding to disguise the location of their operations. The officers discovered that the second phone number, (617) 846-6630, was registered to a corporation, DBA: American Eagle Purchasing Agents, at 381 Winthrop Street, Winthrop, Massachusetts. The person listed in state records as the corporation's treasurer and registered agent was Tzannos, who was also listed on the telephone bill.

Russolillo spoke to CI-1 on August 18 and was told that CI-1 had placed "several wagers" with Tzannos over the 6114 line on August 16 and 17. On August 20, another officer spoke to CI-1 and was told that CI-1 had placed another bet with Tzannos that day, again on the 6114 line. Troopers subsequently conducted surveillance at 381 Winthrop Street and, on several separate days, observed vehicles registered to a Linda Wagner; this was significant because CI-1 had told police that Tzannos had a girlfriend named "Linda."

The affidavit recounted that on August 25, 2003, CI-1 and Russolillo placed a "controlled call" to Tzannos on the 6114 line. This allegation is key to Tzannos's later Franks motion. The affidavit explained that in a controlled call, the police officer dials the number, waits until the target of the investigation answers, hands the phone to the informant, and then watches as the informant speaks to the target. CI-1 told Russolillo that Tzannos was the person who answered the phone during the controlled call, and that Tzannos proceeded to give a rundown of the day's betting lines for baseball.

Russolillo's affidavit stated that CI-1 had provided information to Russolillo and other troopers in the past, and the information "has proven to be reliable and true." It said the troopers had known CI-1 for more than two years and that they knew his identity and address. The affidavit also gave extensive details on CI-1's past cooperation, stating, for example, that CI-1 had identified various bookmakers and their identities and telephone numbers, that all of the information had been corroborated by subsequent investigation, and that past information from CI-1 had led to the arrest, prosecution, and conviction of three men for gaming violations. The affidavit stated that CI-1 had also provided general intelligence information regarding other criminal matters, but that the affiant could not detail the particulars of these cases, because doing so would compromise the anonymity of the informant, making him "susceptible to physical harm and/or retribution." It explained that Russolillo had "learned that traditional organized crime families (such as La Cosa Nostra or the Mafia) and other organized crime groups (such as the Winter Hill Gang) in the Boston area have been heavily involved in illegal gaming and bookmaking and have maintained a significant degree of control over organized bookmaking operations."

B. The State Search Warrant, the Search, and the Federal Indictment

The affidavit asserted that CI-1's information, combined with the officers' investigation, sufficed to create probable cause to believe that Tzannos was violating state laws forbidding certain gaming activities, see Mass. Gen. Laws ch. 271, §§ 17-17A, and was doing so from the building at 381 Winthrop Street. It sought a warrant to search that address. The magistrate agreed and issued the warrant. Massachusetts state police executed the warrant on August 28, 2003, and found a fully equipped gaming office. Officers seized gaming records, $10,200 in cash, and tape recorders and tapes that had been used to record conversations with customers. In addition, police found and seized a loaded pistol, two loaded revolvers, a sawed-off shotgun, various types of ammunition, three switchblade knives, a pair of brass knuckles, and a blowgun with needles.

On June 30, 2004, a federal grand jury indicted Tzannos on charges of violating 18 U.S.C. § 922(g)(1), which prohibits possession of firearms by convicted felons. The indictment stated that the offense "involved three to seven firearms" and that Tzannos possessed at least one of the firearms and at least one piece of ammunition "in connection with another felony offense, to wit: occupying a place for registering bets in violation of Mass. Gen. Laws[] ch. 271, § 17, a Massachusetts offense punishable by imprisonment for a term exceeding one year."

C. The Franks Hearing and the Suppression Order

On February 15, 2005, Tzannos asked the district court to conduct a Franks hearing so that he could challenge "the accuracy and truthfulness of the affidavit." In his motion papers, Tzannos argued that the affidavit had to be untruthful because (1) Russolillo swore that the informant placed calls to the 6114 line on four particular days, August 16, 17, 20, and 25, and spoke to Tzannos on each of those days, (2) the defense identified each and every caller to that number on those days and "ha[d] documentation to back it up," and (3) each and every one of those callers had signed a statement denying under oath that he or she was the informant. Tzannos argued that "[t]he only logical conclusion that one could possibly reach is that there was no informant, or at least that no informant did the things described in the [Russolillo] affidavit." Thus, Tzannos argued, if it were not true that the informant made gambling-related calls to Tzannos over the 6114 line on the four days, then it was necessarily true that no informant existed and that Russolillo had lied.

Tzannos's motion was accompanied by an affidavit of defense counsel, which in turn was supported by several exhibits. Those exhibits included (1) some handwritten ledger sheets, which were seized during the execution of the search warrant at issue, (2) a transcript of one of four audiocassette tapes that were also seized during the search, and (3) signed statements from individuals that Tzannos identified, from the ledger sheets, as having called to place bets with him on the four days in question.

Tzannos focused his challenge on Russolillo's allegation that CI-1 had made a controlled call to Tzannos on August 25, 2003 on the 6114 line. Defense counsel represented that the ledger sheets show that on August 25, only two individuals, "Jerry" and "Norton," called to place bets on the 6114 line. Counsel further represented that the tape is a recording of telephone calls made to the 6114 line on August 25, 2003, and that a transcript of that tape shows that only three people, "Paulie," "Jerry," and "Norton," made gaming-related calls that day to the 6114 line. Counsel then attached signed statements from "Paulie," "Jerry," and "Norton," swearing that "[a]t no time did I cooperate with the police, nor was I a confidential informant."

In response to Tzannos's motion, the government argued that he had failed to meet "the substantial preliminary showing that is a prerequisite to obtaining an evidentiary hearing under Franks." Specifically, the...