United States v. Balsamo

Decision Date29 March 1979
Docket NumberCrim. No. 78-19-SD.
Citation468 F. Supp. 1363
PartiesUNITED STATES of America v. John BALSAMO, a/k/a John Russo, et al.
CourtU.S. District Court — District of Maine

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George J. Mitchell, U. S. Atty., Portland, Maine, James W. Brannigan, Jr., Asst. U. S. Atty. Marshall A. Stern, Bangor, Maine, for Michelle Balsamo (Russo).

Robert F. Collins, Dorcester, Mass., for Steven Freed, Raymond Cammisa and Michael Rossi.

Robert F. Muse, Boston, Mass., for Ricki Benedict, Kenneth Jenda, Samuel Weber and Michael Jenda.

Paul F. Markham, Boston, Mass., for Dennis Aprea, Clinton Velox, Gerald Prinzo and Vincent Dima.

John Wall, Richard A. Skerry, Jr., Boston, Mass., for John Ange and Carl Rosen.

William A. Brown, Boston, Mass., for Robert A. Rankin.

Joseph S. Oteri, Boston, Mass., for John Striano, Peter Neuer, Stephen Capoziello, Louis Calafato and Vincent Billi.

Martin G. Weinberg, Boston, Mass., for Thomas Jordan, Arthur Stingo, Thomas Gorra, Joseph Ferrandino and Eric Weber.

James W. Lawson, Boston, Mass., for Albert Schulz, Jeffrey Zwerling, Joseph Giordano, Anthony Bottiglieri and Robert Oswald.

Herman Kaufman, Jack T. Litman, Litman, Friedman, Kaufman & Asche, New York City, for John Balsamo (Russo).

MEMORANDUM OF OPINION AND ORDER ON DEFENDANTS' MOTION TO SUPPRESS

GIGNOUX, Chief Judge.

Thirty-two defendants were initially charged in a two-count indictment with conspiracy to possess with intent to distribute approximately 20 tons of marijuana in violation of 21 U.S.C. § 846 (Count I) and with possession with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1) (Count II).1 On motion of the government, the possession count (Count II) has been dismissed as against all but nine defendants.2 Presently before the Court is defendants' substituted motion to suppress filed September 1, 1978, pursuant to Fed.R. Crim.P. 12(b)(3) and 41. An evidentiary hearing has been held, the issues have been comprehensively briefed and argued by counsel, and the following memorandum opinion contains the Court's findings of fact and conclusions of law as required by Fed. R.Crim.P. 12(e).

I THE FACTS
A. The Preliminary Investigation

In November 1977 Trooper Robert Watkins of the Maine Department of Special Investigations (DSI)3 learned from an informant that a man using the name John Russo, whose true name subsequently was determined to be John Balsamo, had leased a residence (the "Russo house") in a new subdivision in Boothbay, Maine, called Blue Hill Shores. A number of features of the rental aroused Watkins' suspicion. The informant stated that the lessee was living beyond his means and "acting strangely." The lessee was young and from out of state, making frequent trips between Maine and Long Island, New York, where he owned a house. The lessee paid a high rent for a lease term that included off-season months.4

Watkins' subsequent investigation disclosed that the Russo house was located in a secluded wooded area on the Damariscotta River, with direct access by boat to the ocean. Adjacent to the residence was a common area and a deep water dock, both owned by Blue Hill Shores, Inc. and maintained for the subdivision's owners and tenants. Seven of the 30 subdivision lots had been sold, but only two residences had been completed: the Russo house, owned by Blue Hill Shores, Inc. and leased to Russo, and a house belonging to one Skillings (the "Skillings house"), separated from the Russo house by an undeveloped lot. Both were situated at the end of a dirt road connecting through the woods to the subdivision access road, which in turn joined a town road (the "Pension Ridge road").5

From November 1977 to April 1978 Watkins periodically traveled the access road to check on the Russo house. In November he observed that Russo was driving a 1977 blue Chevrolet pickup truck with a camper top, Maine Registration No. C-176-130. A check on the vehicle showed that it was registered to one Steve Hirshman at 21 Preble Street, Portland. Sergeant Daniel Ross of the Portland Police Department Automobile Theft Division informed Watkins that the registered address of the vehicle was the Plaza Hotel. Ross further reported that a search of the hotel records revealed that no Steve Hirshman had ever lived there, and a hotel clerk had informed Ross that mail addressed to Hirshman had been returned as undeliverable.

Quite apart from Watkins' investigation, a totally independent vehicle investigation began in Portland in April 1978. On April 5 a clerk at the Portland City Hall alerted Detective Joseph Pelletier of the Portland Automobile Theft Division that two men using the names of Steve Hirshman and Stephen Thurston had registered three Chevrolet pickup trucks on April 4 and 5 under suspicious circumstances. The clerk reported that the man who identified himself as Hirshman on the first day gave his name as Thurston on the second. The address on each registration was the same: 21 Preble Street, Portland. Pelletier, believing that stolen vehicles were involved, went to 21 Preble Street, the Plaza Hotel, to investigate. Inquiry of the hotel personnel and a search of the hotel records for the past year disclosed that no Hirshman or Thurston had lived there.

Pelletier next called the Maine Department of Motor Vehicles in Augusta and was informed that a computer check revealed six vehicles, all late model Chevrolet pickup trucks, registered in the names of Steve Hirshman or Stephen Thurston. Two were registered to Stephen Thurston at 21 Preble Street, Portland (Registration Nos. C-190-468 and C-176-317) and a third to Steve Thurston, again at 21 Preble Street (Registration No. C-186-749). A fourth vehicle was also registered to Steve Thurston, but the address was listed as 699 Congress Street, Portland (Registration No. 625-222). Two other vehicles were registered using the 21 Preble Street address, one to Steven Hirshman and the other to Steve Hirshman (Registration Nos. C-176-130 and C-186-529). All six registrations gave April dates of birth. Two Thurston registrations gave birthdates exactly two years apart, April 12, 1942 and April 12, 1944. The two others gave the different birthdate, April 14, 1947. The Hirshman birthdays were also similar, April 12, 1942 and March 12, 1943. The registration to Steve Hirshman was signed "Steve Hirschman."

Clerks at the Department of Motor Vehicles informed Pelletier that certificates of title for one vehicle registered to Hirshman and two registered to Thurston at 21 Preble Street, Portland, had been mailed to the Plaza Hotel, but had been returned as undeliverable. Pelletier also attempted to verify whether anyone by the name of Steve Thurston had ever lived at the 699 Congress Street address given on one registration, but the owner and a resident of the boarding house at that address could not recall such a person. Pelletier's findings were reported to his supervisor, Lieutenant Dewey Martin, and to Sergeant Ross.

There was increased activity around the Russo house in early April 1978. At this time Watkins observed Russo driving the same blue Chevrolet pickup truck (Registration No. C-176-130) which had been seen at the residence in November. He learned that the vehicle was registered in the name of Steven Hirshman at 21 Preble Street, Portland. Upon inquiry, Sergeant Ross told Watkins that Hirshman had never resided there. Watkins also learned that Russo had demanded of the realtor overseeing the Blue Hill Shores property that the float and gangway, which had been destroyed by midwinter storms, be replaced immediately at the end of the fixed dock near his house.

In addition to the Russo house, law enforcement officers in April commenced surveillance of two other waterfront properties in the Boothbay region. Through a realtor, Watkins learned that an individual using the name Raymond Carrazzo6 had rented a residence at Knickerbocker Lake (the "Carrazzo house"). On April 14 Watkins and Portland Police Detective Joseph Rich, temporarily on assignment to the DSI, observed two vehicles at the Carrazzo house. One was a red 1977 Dodge pickup truck with a camper cap registered to one Robert Stafford at 21 Preble Street, Portland (Registration No. C-176-401). The other was a 1973 gold Plymouth Fury, which he learned was registered to one Steven Meyer at the same address (Registration No. 837-270). The same realtor whose suspicions had prompted the report of the Carrazzo house lease informed Watkins that a similar waterfront property had been rented in nearby Bayville by an individual named Anthony Scoriello, also from out of state (the "Scoriello house"). At the Scoriello house, Watkins and Rich observed a green 1978 Chevrolet pickup truck with a camper cap registered to Steve Thurston at 21 Preble Street, Portland (Registration No. C-186-749).

Detective Rich informed Portland Police Detective Michael Russo,7 also temporarily on assignment to the DSI, of the foregoing findings. Russo communicated this information to his supervisor in the Portland Police Department, Sergeant Ross. Ross told Russo of the independent Pelletier investigation, and Russo obtained directly from Pelletier his list of the six suspect Hirshman/Thurston vehicles.

As a result of the above information, surveillance of the Russo house and the two related properties intensified in mid-April. Special Agent Michael Cunniff of the Drug Enforcement Administration (DEA) entered the investigation about April 20. He was fully informed of the findings which had been developed to that date. On April 20 a meeting of agents of the DEA, DSI, Lincoln County Sheriff's Department, and local police officers was held at the Scarborough Barracks of the Maine State Police. The information collected by the various agents, including the list of vehicles Pelletier had developed, was exchanged among the participants, and Cunniff stated that an analysis of the...

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