United States v. Caruso

• Decision Date: 01 July 1976
• Docket Number: No. 75 CR 1157(MP).,75 CR 1157(MP).
• Citation: 415 F. Supp. 847
• Parties: UNITED STATES of America v. Frank CARUSO et al., Defendants.
• Court: U.S. District Court — Southern District of New York

415 F. Supp. 847

UNITED STATES of America v. Frank CARUSO et al., Defendants.

No. 75 CR 1157(MP).

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

July 1, 1976.

Robert B. Fiske, Jr., U. S. Atty., S. D. N. Y., by Carl M. Bornstein, Sp. Atty., Dept. of Justice, New York City.

LaRossa, Shargel & Fischetti, New York City, by James M. LaRossa and Ronald Fischetti, for defendant Caruso.

Murray Richman, New York City, for defendant Dituri.

Aaron Slavetsky, New York City, for defendants DiRienzo and DiSimone.

Eugene F. Mastropieri, Glendale, for defendant D'Addario.

Robert Keshner, New York City, for defendant Bugliarelli.

Dublirer, Haydon & Straci, New York City, by Paul Victor, New York City, for defendant Gagliano.

Edward S. Panzer, New York City, for defendant Messina.

Herbert Siegal, New York City, for defendant Latella.

Michael P. Direnzo, New York City, for defendant Annatone.

Vincent J. Derosa, New York City, for defendant Faranda.

OPINION

POLLACK, District Judge.

The defendants have moved to suppress the fruits of state and federal wiretaps obtained pursuant to eight state and three federal orders essentially on the grounds that the state tapes were not sealed "immediately" upon the termination of the taps and that the federal taps were derived from the state taps. The claim is also made that the affidavits submitted by an FBI agent as part of the government's application for the three federal taps were insufficient to authorize the use of wiretaps as an investigative technique and that other traditional means were sufficient and should have been employed.¹

At the conclusion of the hearing on suppression and following due deliberation, the Court denied the motions to suppress and announced that an opinion would follow. The Court's decision was made in this way to give the parties the benefit of the time intervening before the scheduled trial date to prepare for trial in the light of the decision reached.

The defendants herein are charged in a two count Indictment alleging that they wilfully and knowingly conducted an illegal gambling business in violation of Title 18, United States Code, Sections 1955 and 2. The instant prosecution is the culmination of an investigation of the alleged gambling combine. The investigation was initially conducted by the office of the District Attorney of Bronx County, New York, in conjunction with the New York City Police Department, and subsequently involved the Federal Bureau of Investigation. The state wiretap orders — not all of which intercepted people or places involved herein — were issued from September 1973 until July 1974. In about February 1974 the surveillance was compromised by an unauthorized leak to members of the combine that their phones were being tapped. In April 1974 the state authorities learned that the FBI was pursuing a parallel investigation and the efforts of the two agencies were combined. The District Attorney's office thereafter conducted the so-called Vaccarelli and Faranda state wiretaps.

Subsequently, the FBI made use of the results of the state intercepts to establish the "probable cause" necessary to obtain three authorizations for federal wiretaps from Judges Ward, Owen and Motley (the last tap was an extension of Judge Owen's) from July to October, 1974. The tapes resulting from these three taps are those which the government intends to introduce at trial; none of the state tapes will be utilized as evidence.

I

At the threshold, the government contends that most of the defendants have no standing to challenge the use of the state tapes and the information derived therefrom in obtaining the federal wiretaps.

It is settled that only those whose conversations were intercepted or against whom the interception was directed, or on whose premises the conversations took place, may assert the unlawfulness of the interception. 18 U.S.C. § 2510(11); Alderman v. United States, 394 U.S. 165, 176, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969); United States v. Wright, 524 F.2d 1100, 1102 (2d Cir. 1975); United States v. Bynum, 513 F.2d 533, 534-35 (2d Cir.), cert. denied, 423 U.S. 952, 96 S.Ct. 357, 46 L.Ed.2d 277 (1975).

None of the state wiretaps was directed against any defendant herein who was not intercepted, and none of the intercepted conversations occurred on the premises of any defendant who was not himself intercepted. The defendants who were not intercepted thus have no standing to challenge the state taps directly. While these defendants may have been intercepted in the course of the federal taps, they may not contest the federal taps on grounds derived exclusively from alleged defects in the state taps as to which they are not "aggrieved persons." United States v. Wright, supra.

Applying these principles, the evidence shows that four of the state wiretaps did not involve the interception of any of the eleven defendants herein; two of the remainder were sealed promptly after only one or two days following their terminations and are not challenged on the ground of delayed sealing by any defendant. The remaining two state taps intercepted only three defendants, D'Addario, Dituri and Faranda in one (that issued by Justice Bernstein on January 24, 1974, the "G & D" tap), and one defendant, Dituri, in the other (issued by Justice Bloom on December 10, 1973, the "Social Club" tap). Thus, only these three defendants have standing to assert that the federal taps were tainted by the delay in sealing of the two previous state taps, and only one of those three may assert sealing defects in both state taps.

II

Section 2518(8)(a) of Title 18, U.S.C., proscribes the use at trial of intercepted conversations or "evidence derived therefrom" unless the tape bears a judicial seal or a "satisfactory explanation" is provided for its absence. This section has been held to be equally applicable where, although a seal is present, there has been a delay in the sealing process. See United States v. Gigante, 538 F.2d 502 (2d Cir. 1976); United States v. Poeta, 455 F.2d 117, 122 (2d Cir.), cert. denied, 406 U.S. 948, 92 S.Ct. 2041, 32 L.Ed.2d 337 (1972). The law of New York, which is applicable only to the extent it is more restrictive than federal law, see United States v. Marion, 535 F.2d 697 (2d Cir. 1976), appears to be the same. See People v. Simmons, 378 N.Y.S.2d 263, 266 (N.Y. Sup.Ct.1975).

Thus, suppression of the federal tapes is warranted on behalf of the defendants D'Addario, Dituri and Faranda only if (1) there is no satisfactory explanation for the delay in sealing of the two state taps, and (2) the federal tapes constitute "evidence derived" from state taps which they have standing to challenge.² As is explained below, neither of these factors is present in the instant case; accordingly, the federal tapes may not be suppressed on this ground.

Having seen and heard the witnesses and considered the circumstances and the other evidence bearing on the issue, I decide and find that the delays in sealing the "Social Club" tapes were satisfactorily explained, did not derive from any purpose to obtain tactical advantages for the surveilling parties or the state prosecutors, and no investigative benefits were sought or obtained by the delays. There is no evidence whatsoever of tampering with the tapes from the date of the termination of the tap until the date of the seal. The delays encountered by the efforts of the Police to ready the tapes for sealing and to duplicate the Social Club tapes and the internal discussions in the District Attorney's office looking to continuance of the interception adequately explain and sufficiently justify, under the peculiar circumstances, the 24 day delay in sealing the Social Club tapes.

In respect to the G & D tapes, there was a tip-off to the targets of the tap, as the tape apparently confirms, resulting in a decision to terminate that tap before the date to which it had been authorized. The discovery of this misconduct brought on a flurry of excitement and confusion followed by the unexpected hospitalization of the Assistant District Attorney in charge and ultimately the re-assignment of the case to another assistant district attorney. In the course of picking up the threads, the latter discovered that the tapes so terminated had not been sealed and he immediately cured the defect.

While the duration of this sequence of events, 42 days, stretches the time periods of delay in sealing previously held to be satisfactorily explained, every case is sui generis. The sealing delay yielded no benefit to the surveilling authorities, was not sought for such a purpose, gave no one any tactical advantage and no tampering was either suspected or hinted or established in the premises by any party. I decide and find, having had the benefit of seeing and hearing the witness produced, evaluating his testimony on its own intrinsic merit and in the circumstances and on the basis of all the evidence bearing in any way on the issue, that a sufficient and satisfactory explanation had been established for the delay in sealing, and that it was not untimely.

As to the second factor listed above, it appears that the federal tapes do not constitute "evidence derived" from the state taps at issue here. While the application for the federal wiretap orders relied almost exclusively on information obtained from the prior state intercepts, the two intercepts which the defendant Dituri has standing to challenge, and the single intercept which the defendants D'Addario and Faranda may challenge, played a minor role in the applications.

Examination of the affidavits and information submitted in support of the federal wiretap orders shows that neither of the two state taps subject to challenge, either alone or in conjunction, was necessary to the establishment of probable cause on which such orders issued. Since the mere inclusion of illegally obtained evidence in an application for a wiretap authorization does not vitiate the order in such...