United States v. Clemente

• Decision Date: 11 October 1979
• Docket Number: No. S 79 Cr. 0142 (LBS).,S 79 Cr. 0142 (LBS).
• Citation: 482 F. Supp. 102
• Parties: UNITED STATES of America v. Michael CLEMENTE, Tino Fiumara, Thomas Buzzanca, Vincent Colluci, Carol Gardner, Michael Copolla, Manuel Castelo, Jr., Joseph Castelo, Castelo & Sons Ship Servicing, Inc., Gerald Swanton, George Zappola, Robert Melli, Defendants.
• Court: U.S. District Court — Southern District of New York

482 F. Supp. 102

UNITED STATES of America v. Michael CLEMENTE, Tino Fiumara, Thomas Buzzanca, Vincent Colluci, Carol Gardner, Michael Copolla, Manuel Castelo, Jr., Joseph Castelo, Castelo & Sons Ship Servicing, Inc., Gerald Swanton, George Zappola, Robert Melli, Defendants.

No. S 79 Cr. 0142 (LBS).

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

October 11, 1979.

COPYRIGHT MATERIAL OMITTED

Robert B. Fiske, Jr., U. S. Atty. for the Southern District of New York by Michael S. Devorkin, and Daniel H. Bookin, Asst. U. S. Attys., New York City, for plaintiff.

Paul A. Victor, New York City, for defendant Clemente.

Patricia Costello and Dennis D. S. McAlevy, Hoboken, N. J., for defendant Fiumara.

Gilbert Rosenthal, New York City, for defendant Buzzanca.

Michael Ascher and Dino D. Bliablias, Newark, N. J., for defendant Colucci.

Joseph A. Hayden, Jr., Newark, N. J., and Raymond M. Brown, Jersey City, N. J., for defendants Gardner and Copollia.

Leonard Meyerson, Jersey City, N. J., for defendant M. Castelo, Jr.

John P. Nulty, Newark, N. J., for defendant J. Castelo.

John R. Bartels, Jr., White Plains, N. Y., for defendant Castelo and Sons Ship Service.

James T. Owens, Newark, N. J., for defendant Swanton.

SAND, District Judge.

Defendants have moved to suppress evidence obtained by the Government as the result of electronic surveillance. Two types of electronic surveillance were conducted pursuant to court orders issued under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. sections 2510-2520 (1976): oral surveillance, i. e., "bugging" of the premises, and telephone wiretaps. Defendants' principal legal contention is that the prolonged and extensive scope of the electronic surveillance was of such a nature as to constitute a violation of Title III and the Fourth Amendment.¹ In addition to this contention, with respect to which no evidentiary hearing was sought, defendant Thomas Buzzanca raises the issue of whether the Government sufficiently minimized the Buzzanca oral surveillance. The Court held an evidentiary hearing on the minimization question on August 1, 2, and 6, 1979, and post-hearing briefs were subsequently filed.

We deal herein with issues relating to the scope of the electronic surveillance and the sufficiency of the Government's efforts to minimize the Buzzanca oral surveillance.² We have considered and reject miscellaneous other requests made by defendants.

I. THE SCOPE OF THE SURVEILLANCE

A. The Issue

In a joint memorandum of law in support of motions of defendants Copolla, Colucci, Fiumara and Gardner, the scope of the surveillance issue is expressed as follows:

The principal issue which the moving defendants' electronic surveillance motions raise is whether the courts of this country are to give the government a blank check to utilize the incredibly intrusive and privacy shattering tools of electronic surveillance in such an intensive and pervasive manner as to render meaningless both the constitutional protections of the Fourth Amendment and the legislative protections of Title III, 18 U.S.C. sections 2510-2520. This case presents that issue in its starkest form. (Defendants' Memorandum of Law at p. 9).

It is significant that no contention is seriously advanced by defendants that there has not been, except as will be discussed herein, full, complete, literal compliance with all of the numerous and complex requirements of Title III. Thus, no objection is made that there was a lack of probable cause or that the requisite reports were not timely made and filed. It is the cumulative effect of all the various orders to which defendants primarily object.

B. The Nature of the Surveillance

To understand and properly evaluate the thrust of defendants' contention, one must first recognize the extent of the relevant electronic surveillance which occurred in connection with the investigations which preceded the indictment herein.

A total of eighteen orders are involved, authorizing oral and wire interceptions at three locations. Orders for the surveillance at each location were issued by three district judges.

The original order and subsequent extensions authorizing the surveillance at Quin Marine Service, Inc., were issued and supervised by Judge Jack B. Weinstein, sitting in the Eastern District of New York. The first QUIN ORAL order was issued on August 25, 1977 and was followed by six extensions (QUIN ORALS II-VII), the last of which was issued on February 22, 1978. In short, the surveillance spanned approximately seven months, with each order covering a thirty-day period. The QUIN WIRE surveillance was authorized by an original order issued on September 29, 1977 and four extensions (QUIN WIRES II-V), the last of which was issued on January 13, 1978. The total length of this surveillance was approximately four and a half months. Each of the orders covered a period of thirty days, except the order issued on December 30, 1977, which was for fifteen days. The Government submitted five-day written reports, as well as copies of the daily logs, to' Judge Weinstein throughout the period of surveillance.

Electronic surveillance in the office of defendant Buzzanca, International Longshoremen's Association Locals 1804 and 1804-1, was authorized by orders and extensions issued and supervised by Judge Lawrence W. Pierce, sitting in the Southern District of New York. The original order authorizing oral interceptions (BUZZANCA ORAL), issued on March 7, 1978, was followed by two extensions (BUZZANCA ORALS II-III), each for a thirty-day period. This monitoring covered a three-month time span. The wire interceptions at Buzzanca's office (BUZZANCA WIRE) were authorized by a thirty-day order issued on May 11, 1978 which expired without extension. Five-day reports and daily logs were submitted to Judge Pierce, who supervised the progress of the surveillance.

Judge Vincent P. Buinno, sitting in the District of New Jersey, issued the authorization to intercept wire communications at Castelo and Sons Ship Servicing, Inc. on March 20, 1978 (CASTELO WIRE). This thirty-day order was extended for another thirty days by an order signed on April 20, 1978. Judge Buinno also received five-day reports and daily logs of the surveillance.³

All the surveillance orders contained authorization for interceptions concerning the following illegal activities: racketeering, unlawful payment to labor union officials, and unlawful receipt of payment by labor union officials. The QUIN ORALS, QUIN WIRES, and CASTELO WIRE II specified in addition interstate transportation of stolen property. Obstruction of justice and obstruction of a criminal investigation were also included in QUIN ORAL VI, QUIN ORAL VII, and QUIN WIRE V. Interference with commerce by threats or violence was specified in QUIN ORAL VI, QUIN ORAL VII, QUIN WIRE III, IV, and V. The BUZZANCA WIRE and BUZZANCA ORAL III included unlawful embezzlement of assets by labor union officials.

The authorized objective of the surveillance was to determine the identities and roles of all agents, co-conspirators and confederates involved in the enumerated illegal activities and to reveal the methods of operation, nature, scope and details of the criminal activities. Each of the orders specified that the surveillance was to be conducted in "such a way as to minimize the interceptions of communications not otherwise subject to interception" and was to "terminate upon attainment of the authorized objective or, in any event, at the end of thirty days" from the date of the order.

Defendants requested that the Government cause a search to be made of other federal investigating agencies to ascertain whether other electronic surveillance of these defendants, in addition to the electronic surveillance conducted as aforesaid, may have also been conducted under the aegis of the federal government. The Government acquiesced in this request, and a so-called eight-agency search was conducted which disclosed that "the federal government did not conduct any other electronic surveillance of the defendants."⁴

C. Analysis

In considering the scope of the electronic surveillance here in issue, this Court is very sensitive to the fact that "few threats to liberty exist which are greater than that posed by the use of eavesdropping devices." Berger v. New York, 388 U.S. 41, 63, 87 S.Ct. 1873, 1885, 18 L.Ed.2d 1040 (1967). We approach questions involving electronic surveillance mindful that "wherever a man may be, he is entitled to know that he will remain free from unreasonable searches and seizures." Katz v. United States, 389 U.S. 347, 359, 88 S.Ct. 507, 515, 19 L.Ed.2d 576 (1967).

"The protection of privacy was an overriding congressional concern in enacting Title III," Gelbard v. United States, 408 U.S. 41, 48, 92 S.Ct. 2357, 33 L.Ed.2d 179 (1972), "a comprehensive scheme for the regulation of wiretapping and electronic surveillance." Id. at 46, 92 S.Ct. at 2360. This congressional solicitude for the safeguarding of privacy was clearly expressed in the Senate Committee Report on Title III: "Title III has as its dual purpose (1) protecting the privacy of wire and oral communications, and (2) delineating on a uniform basis the circumstances and conditions under which the interception of wire and oral communications may be authorized." (S.Rep. No. 1097, 90th Cong., 2d Sess. 66 (1968), reprinted in 1968 U.S.Code Cong. & Admin.News, pp. 2112, 2153) hereinafter cited as Senate Report. In short, Title III represents an attempt by Congress to establish a system of electronic surveillance subject to rigorous safeguards. United States v. Tortorello, 480 F.2d 764, 773 (2d Cir. 1973), cert. denied, 414 U.S. 866, 94 S.Ct. 63, 38 L.Ed.2d 86 (1973).

Defendants' motion to suppress must fail for a number of reasons. We note that in Scott v. United States, 436 U.S. 128, 140, 98 S.Ct. 1717, 1725, 56 L.Ed.2d 168 (1978), in the context of indicating whether proper minimization...