U.S. v. Yannotti

• Decision Date: 25 May 2005
• Docket Number: No. 04 CR.690(SAS).,04 CR.690(SAS).
• Citation: 399 F.Supp.2d 268
• Parties: UNITED STATES OF AMERICA v. Michael YANNOTTI, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

Page 268

399 F.Supp.2d 268

UNITED STATES OF AMERICA v. Michael YANNOTTI, et al., Defendants.

No. 04 CR.690(SAS).

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

May 25, 2005.

Michael G. McGovern, Joon H. Kim, Victor Hou, Assistant United States Attorneys, New York City, for the Government.

Diarmuid White, White & White, New York City, for Defendant Michael Yannotti.

Marc Allan Fernich, Law Office of Marc Fernich, New York City, Jeffrey Lichtman, Law Office of Jeffrey Lichtman, New York City, for Defendant John A. Gotti.

Barry Levin, Garden City, NY, for Defendant Joseph D'Angelo.

Charles F. Carnesi, Garden City, NY, for Defendant Louis Mariani.

OPINION & ORDER

SCHEINDLIN, District Judge.

I. INTRODUCTION

Michael Yannotti ("Yannotti") is charged with murder, two separate attempted murders, and loansharking in connection with an alleged racketeering enterprise and racketeering conspiracy in violation of the Racketeer Influenced and Corrupt Organizations Act. Yannotti has moved to suppress all evidence against him that was derived from a wiretap of a cellular telephone that he used while in Florida in 1996. In a Memorandum Opinion and Order dated April 15, 2005, I denied three grounds for suppressing the wiretap evidence: (1) that there was insufficient probable cause to support the wiretap authorization; (2) that the Government's application contained knowing and material falsehoods, warranting a hearing under Franks v. Delaware; and (3) that the tapes of the wiretapped conversations had been improperly sealed.¹ However, I allowed additional briefing of a fourth ground for suppression—that the Government was required to seek an amended wiretap order naming Yannotti as an interceptee —which was developed by Yannotti's new counsel at oral argument on April 12, 2005.² Yannotti now contends that because the Government failed to seek an amended wiretap order, the interception of his calls (1) constituted an unreasonable search in violation of the Fourth Amendment, (2) exceeded the scope of the wiretap order, or in the alternative (3) rendered the wiretap order "akin to a general warrant."³ For the reasons that follow, Yannotti's motion to suppress is denied.

II. BACKGROUND⁴

In April 1996, the Government applied to Judge William J. Zloch of the United States District Court for the Southern District of Florida for a wiretap order to intercept wire communications of Nicholas Corozzo,⁵ six other named interceptees and "others yet unknown," over a cellular telephone that had been supplied to Corozzo by a confidential source.⁶ The application alleged that Corozzo and the others were engaged in a racketeering conspiracy, whose activities included fraud, the sale or receipt of stolen goods, extortion, loansharking, and money laundering.⁷ According to the application, a confidential source "furnished the target cellular telephone to COROZZO for his use in conducting the criminal activities referred to herein."⁸ The application further stated that "COROZZO is presently using the target cellular telephone."⁹

On the basis of the application, Judge Zloch found that there was probable cause to believe that Corozzo, the six named interceptees, and "others as yet unknown" were engaged in a racketeering conspiracy and, furthermore, that the target cell phone would be used "in connection with [the] commission" of this criminal activity.¹⁰ Accordingly, Judge Zloch authorized a thirty-day wiretap, commencing on April 12, 1996.¹¹

In a ten-day progress report submitted to the court on April 22, 1996, the Government stated that prior to returning to New York on April 13—the day after the wiretap order was issued—Corozzo gave the target cellular phone to Yannotti, who was identified as an associate in the Gambino Crime Family who reported directly to Corozzo and was the "muscle" in his crew.¹² According to the report, Corozzo indicated at that time that he would return to southern Florida "within a couple of weeks."¹³ No calls made by Corozzo were ever intercepted over the target phone prior to his departure. Rather, the logs maintained by the monitoring agents show that all the calls from the beginning of the wiretap on April 12 until 6:21 p.m. on April 13 were from "UF"—i.e., an unidentified female—or "Eileen" (alternatively spelled "Ilean").¹⁴ According to the progress report, at 8:45 p.m. on April 13, Yannotti placed a call on the target phone to Salvatore Pecchio, who informed him that Corozzo had been dropped off at the Fort Lauderdale Airport.¹⁵ The report stated that Corozzo "had just left for New York."¹⁶ Thus, the report shows that when Corozzo departed for New York, the Government knew that he left the target cell phone behind in Florida.

After Corozzo's departure, the Government continued monitoring the target phone. The progress report alleged that Yannotti placed two calls, albeit in guarded language, concerning the collection of loansharking payments.¹⁷ According to the Government, these payments were owed to Corozzo.¹⁸ On the basis of these conversations, the report concluded that Yannotti, Corozzo, and others would continue using the target phone to discuss the offenses described in the wiretap order.¹⁹ The report also stated that the Government would identify Yannotti as a named interceptee in the event that the Government sought an extension of the wiretap.²⁰ No extension was sought.

III. APPLICABLE LAW

The Fourth Amendment requires that a warrant specify "the place to be searched, and the persons or things to be seized."²¹ "In the wiretap context, those requirements are satisfied by identification of the telephone line to be tapped and the particular conversations to be seized."²²

In addition, Title III of the Omnibus Crime Control and Safe Street Act of 1968²³ governs the authorization of wiretaps. Section 2518 requires that an application for a wiretap order include, among other things:

(i) details as to the particular offense that has been, is being, or is about to be committed, (ii) . . . a particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted, (iii) a particular description of the type of communications sought to be intercepted, [and] (iv) the identity of the person, if known, committing the offense and whose communications are to be intercepted.²⁴

Similarly, the wiretap order itself must specify:

(a) the identity of the person, if known, whose communications are to be intercepted; (b) the nature and location of the communications facilities as to which, or the place where, authority to intercept is granted; [and] (c) a particular description of the type of communication sought to be intercepted, and a statement of the particular offense to which it relates.²⁵

A wiretap order need not identify every person whose conversations may be intercepted in order to comply with the Fourth Amendment.²⁶ Rather, "a court must analyze the facts of each case in order to determine whether the wiretap order and any monitoring searches undertaken pursuant to it conform to fourth amendment requirements."²⁷

Section 2515 mandates the suppression of the contents of any intercepted wire communication as well as any evidence derived therefrom "if the disclosure of that information would be in violation of this chapter."²⁸ Section 2518 lists the circumstances that trigger suppression under section 2515:

(i) the communication was unlawfully intercepted;

(ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or

(iii) the interception was not made in conformity with the order of authorization or approval.²⁹

The Supreme Court has explained that communications are "unlawfully intercepted" in violation of the first prong of the above list only "where there is failure to satisfy any of those statutory requirements that directly and substantially implement the congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device."³⁰

IV. DISCUSSION

Yannotti contends that once the Government knew that Corozzo had left Florida and that the target cell phone was no longer in his possession because it had been given to Yannotti, the Government was required to cease intercepting communications and to seek a new wiretap order authorizing the interception of Yannotti's communications over the phone. As noted above, Yannotti makes three arguments in support of this position. First, relying on Katz v. United States,³¹ he maintains that, under the circumstances of this case, the interception of Yannotti's calls was an unreasonable search in violation of the Fourth Amendment. Second, he argues that the order cannot be reasonably interpreted as authorizing continuing interceptions in the event that the phone was no longer in Corozzo's possession and, consequently, the Government exceeded the scope of the order. Third and finally, Yannotti claims that construing the wiretap order as allowing the continued interception of calls after Corozzo was no longer in possession of the phone would convert the order into a general warrant, also in violation of the Fourth Amendment.

To begin, Yannotti's reliance on Katz is misplaced. In that case, the Government intercepted communications from a public telephone without a court order. Because the officers failed to obtain a warrant, and none of the exceptions to the warrant requirement applied, the Supreme Court found that the surveillance violated the Fourth Amendment and, therefore, reversed the petitioner's conviction.³² By contrast, the agents in this case had a warrant to intercept communications over the cell phone used by Yannotti. Consequently, Yannotti's reliance on Katz begs the question of whether the wiretap order authorized the agents to intercept his calls. Moreover, as the Supreme Court noted in a case in which the Government did not identify several...