United States v. Feola
| Citation | 651 F. Supp. 1068 |
| Decision Date | 12 January 1987 |
| Docket Number | No. 85 Cr. 1109-CLB.,85 Cr. 1109-CLB. |
| Parties | UNITED STATES of America, Plaintiff, v. Gary FEOLA, et al., Defendants. |
| Court | U.S. District Court — Southern District of New York |
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Rudolph Giuliani, U.S. Atty., S.D.N.Y., Franklin H. Stone, Asst. U.S. Atty., New York City, for plaintiff.
Frank A. Lopez, Brooklyn Heights, N.Y., for Gary Feola.
Maurice H. Sercarz, Brooklyn Heights, N.Y., for Art Torsone.
Stanley A. Teitler and Michael J. Coyle, New York City, for Edmund Rosner.
William I. Aronwald, White Plains, N.Y., for John Farese.
Dominick Porco, Eastchester, N.Y., for John Cercena.
Ivan Fisher, New York City, for Steven Gallo.
Joseph S. Lyons, Baltimore, Md., for Solomon Gumpricht.
Robert J. Ponzini, Tarrytown, N.Y., for George Acevedo.
Robert I. Kalina, New York City, for Mark Dratch.
Marion Seltzer, New York City, for Arthur McGuire.
John Jacobs, New York City, for Daniel Wall.
Roger J. Schwarz, New York City, for Noemi Fernandez.
Barry Asness, New York City, for Rubiel Marin.
Harvey A. Kaminsky, Hartsdale, N.Y., for Ira Neuringer.
John C. McBride, Boston, Mass., for Robert Marrama.
Joseph M. Flak, Boston, Mass., for Richard Sullivan.
Martin Stewart, New York City, for Luz Arteago.
Vincent W. Lanna, Yonkers, N.Y., for Louis Tarantelli.
Michael F. Natola, Boston, Mass., for Doug MacLennan.
Defendants in this case stand charged, by first superseding indictment filed on March 27, 1986, with having operated a cocaine and marijuana trafficking ring, centered in Westchester County and Manhattan, which distributed narcotics during 1985. Defendant Luz Arteago has heretofore been granted a severance from her co-defendants by order of this Court on May 13, 1986, and nothing contained herein applies to her. Count One of the Indictment charges nineteen defendants—Gary Feola, Edmund Rosner, Noemi Fernandez, Rubiel Marin, Jaime Arango, John Farese, Ira Neuringer, Louis Tarantelli, John Cercena, Stephen Gallo, Arthur Torsone, Daniel Wall, Solomon Gumpricht, George Acevedo, Robert Marrama, Doug MacLennan, Richard Sullivan, Mark Dratch, and Arthur McGuire—with conspiracy to distribute cocaine between January 1, 1985 and November 26, 1985, in violation of 21 U.S.C. § 846 (1982). Count Two charges Feola, Rosner, Torsone, and Dratch with conspiracy to distribute marijuana and possess marijuana with intent to distribute during the same period, again in violation of § 846. Count Three charges Fernandez with possession with intent to distribute cocaine, in violation of 21 U.S.C. §§ 821 and 841 on November 26, 1985. Counts Four, Five, and Six charge Gallo with the possession of three separate firearms as a convicted felon, in violation of 18 U.S.C.App. I, § 1202 (1982). Counts Seven through Seventeen seek the forfeiture of several items of real and personal property, including interests in apartments, various automobiles, and cash, all pursuant to 21 U.S.C. § 843 (1982).
These defendants have made numerous pre-trial motions, discussed below, which became fully submitted to the Court for decision on December 23, 1986 with the docketing of a letter to this Court by counsel for Defendant Rosner, seeking its review of a composite tape recording and transcripts for certain wiretap conversations, which materials were prepared in conjunction with the Government and submitted by the Government on December 15, after being requested by Defendant Rosner by letter docketed December 3, 1986. The Court has been receiving submissions continually from the parties since the original motions were filed in June and July of 1986, including the Government's Reply Brief filed on October 14, 1986 and the wiretap logs received from the Government on November 18, 1986. Also received from the Government, in late November and early December of 1986, were sealing orders in connection with the intercepted conversations discussed below, and a letter of certification as to statements made by certain defendants. All of the above materials were, of course, necessary to the Court's determination of the motions herein.
The within motions fall primarily into four broad categories, and this decision seeks, so far as is practicable, to dispose of the motions by category:
1. Suppression Motions. The evidence in this case derives largely from eleven eavesdropping orders issued by two justices of the New York Supreme Court between August 14 and November 8, 1985. Those orders will henceforth be referred to as Orders A-K. All defendants contest the propriety of these orders, on as many as fifteen separate grounds, and seek suppression of their fruits.
Defendants were arrested on November 26, 1985. As detailed below, numerous items including drugs and drug paraphernalia were seized at the time. The defendants from whom they were seized seek to suppress this physical evidence.
Three defendants, Tarantelli, Gumpricht, and Cercena, have moved for a pre-trial hearing concerning the voluntariness of their statements.
2. Severance Motions. Acevedo, Dratch, Farese, Fernandez, Gallo, MacLennan, Marrama, Neuringer, Sullivan, and Tarantelli move to sever their trials or specific counts in the indictment. In particular, defendants move to sever the weapons counts against Stephen Gallo, and Gallo himself seeks such a severance. Others move to sever the two conspiracy counts, Counts One and Two, which cover different illicit merchandise, from each other.
3. Evidentiary Motions. Including Discovery. Defendants including Cercena, MacLennan, Sullivan, Marrama, Dratch, Acevedo, Marin, and Tarantelli have moved for rulings in limine with respect to specific evidentiary issues, such as admissibility of evidence of prior convictions. Combinations of defendants seek discovery on a broad front.
4. Miscellaneous Motions. Other significant motions are discussed below as a miscellany.
This necessarily abbreviated statement of facts, assumed to be true for purposes of this decision only, is drawn primarily from the various affidavits of Detective Robert Magaletti in support of Orders A-K. The account of events after Magaletti's last affidavit is drawn from the Government's brief.
The 1985 investigation that led to this indictment was not the principal defendants' first encounter with our criminal justice system. A 1978 joint investigation by the Drug Enforcement Administration and the New York City Police Department led to John Farese's conviction, and imprisonment, for selling cocaine. Farese implicated Gary Feola as a "partner" who could acquire cocaine and heroin. Feola was arrested in the course of a 1981 investigation of John Cercena, a search of whose home yielded cocaine and marijuana. Feola was convicted of conspiracy in the fourth degree in connection with an attempted sale of three kilograms of cocaine in 1982, and imprisoned.
The initial steps of the 1985 investigation, from Detective Magaletti's account, involved pen register surveillance, and information gained from named and unnamed confidential informants. Pen register surveillance of Farese's telephone in April-May and June-August revealed that thirty percent of outgoing calls were to telephones listed to individuals with known criminal records, or persons who were believed to be dealing in narcotics, including 64 calls to Cercena's phone and 47 to Feola's.
The Named Informants.
Detective Magaletti refers to two named informants in his first application. In a September 1982 prison interrogation, Dominic Carbone, a target of the 1981 Cercena investigation, implicated Feola, Farese, Cercena, and others in a drug trafficking ring for which Carbone said that he acted as "enforcer." Vincent James Tarantelli, brother of defendant Louis Tarantelli, was arrested for selling cocaine in February 1984: soon after his arrest, he told Detective Magaletti that he had received the cocaine from one John Colletti, who had told him that he had received it from Feola.
Possibly the single most important component of Magaletti's first application is the information he received from his so-called Confidential Informant 1, or "CI # 1." CI # 1 claimed to have lived in Farese's house "for several years between 1977 and 1984" and to have gained personal knowledge of the workings of the organization by working as a "mule," a courier of drugs between Florida and Westchester County, New York. According to CI # 1, Farese, Feola, or Cercena would negotiate a cocaine purchase from New York, then travel to Florida to pay the supplier, and return, leaving it to CI # 1 to transport the cocaine back to Westchester, where it would be distributed to trusted local dealers. Neither Feola, Farese, nor Cercena ever personally handled the cocaine in transit. Detective Magaletti claims that CI # 1's account is corroborated by the transaction for which Feola was arrested in 1981, for which Cercena acted as "mule." He goes on to cite two other transactions involving CI # 1. In March 1984 investigators took CI # 1 up on his claim that he could succeed in a controlled buy of cocaine from Farese. CI # 1 returned with marijuana, claiming that if he had bought cocaine Farese would have been arrested immediately by the New York police, would have realized that CI # 1 had set him up, and would have had CI # 1 killed. Finally, in August 1985 CI # 1 informed authorities that he had been ordered to go to Fort Lauderdale for one week in the usual manner for making a cocaine pick-up. A check of his airplane and hotel reservations confirmed his story at least in part. On this basis, Detective Magaletti represented that CI # 1 was a reliable informant.
CI # 2 told the investigators of a 1984...
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