United States v. Gambale

• Decision Date: 12 June 1985
• Docket Number: Crim. No. 84-293-K.
• Citation: 610 F. Supp. 1515
• Parties: UNITED STATES of America, v. Richard Ernest GAMBALE, James Peter Limone, Jr., Ralph Lamattina, John Carmen Cincotti, Jason Brion Angiulo, John Louis Orlandella, and William Joseph Kazonis, Defendants.
• Court: U.S. District Court — District of Massachusetts

610 F. Supp. 1515

UNITED STATES of America, v. Richard Ernest GAMBALE, James Peter Limone, Jr., Ralph Lamattina, John Carmen Cincotti, Jason Brion Angiulo, John Louis Orlandella, and William Joseph Kazonis, Defendants.

Crim. No. 84-293-K.

United States District Court, D. Massachusetts.

June 12, 1985.

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Barry M. Haight, Buckley, Haight, Muldoon, Milton, Mass., for Gambale.

Richard Egbert, Boston, Mass., for Limone.

Willie Davis, Boston, Mass., for Cincotti.

John Voorhees, Boston, Mass., for U.S.

Memorandum and Order

KEETON, District Judge.

On September 14, 1984, a grand jury returned a thirteen-count indictment against the seven defendants in this case. All defendants are charged with violations of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961 et seq. (1982) (Counts 1, 2). Defendants Angiulo, Cincotti, Kazonis, Lamattina, and Orlandella are charged with operating an illegal gambling business, in violation of 18 U.S.C. §§ 1955 and 2 (1982) (Counts 3-6). Defendants Angiulo, Gambale, Kazonis, and Limone are charged with obstruction of justice, in violation of 18 U.S.C. § 1503 (1982), and conspiracy to obstruct justice, in violation of 18 U.S.C. § 371 (1982) (Counts 7-9). Finally, defendants Gambale, Limone, and Orlandella are charged with conspiracy to make and collect extortionate extensions of credit in violation of 18 U.S.C. §§ 892(a) and 894(a) (1982) (Counts 10-13).

With the exception of defendant Lamattina, who is still at large, defendants have moved to dismiss the indictment and/or suppress evidence obtained as a result of electronic surveillance conducted by the government at 98 Prince Street, Boston, Massachusetts, from January 9, 1981 to May 3, 1981 and at 51 North Margin Street, Boston, Massachusetts, from January 30, 1981 to February 26, 1981 and from March 27, 1981 to May 12, 1981. Defendants have also moved for an evidentiary hearing on the above motions. In addition, defendants have made various motions which are unrelated to the electronic surveillance in this case. Oral arguments on these motions have been presented in three hearings, written submissions have been filed, and the motions are now ready for consideration.

I. Motions Related to Electronic Surveillance

During oral argument, and in submissions to the court, defendants essentially asserted eleven different grounds in support of the various motions to dismiss the indictment and/or suppress evidence obtained as a result of electronic surveillance. Each will be considered in turn. The first six of these grounds, discussed in Sections I.B. through I.G., were asserted in similar fashion by defendant William Cintolo in motions before me, and the reasoning of the memorandum of decision in that case is equally applicable herein. See United States v. Cintolo, CR 84-397-G(K) (D.Mass., April 26, 1985). Rather than referring to that memorandum, however, for greater convenience I have incorporated applicable portions of it into the present memorandum.

A. Questions of Standing

Before turning to defendants' arguments, I first consider whether any or all defendants have standing to challenge the various interceptions at issue in this case. The government argues that only defendant Cincotti and defendant Lamattina, who is not now before the court, have standing to challenge evidence obtained as a result of electronic surveillance at 51 North Margin Street. The government asserts, and defendants have not disputed, that none of the other defendants was either named in the orders authorizing electronic surveillance at 51 North Margin Street or was a party to conversations intercepted at that location. Nor is it claimed that any of the defendants had a proprietary interest in 51 North Margin Street.

Under the provisions of Title III, "any aggrieved person ... may move to suppress the contents of any intercepted wire or oral communication, or evidence derived therefrom," on the ground that it was unlawfully intercepted. 18 U.S.C. § 2518(10)(a) (1982). The statute defines an "aggrieved person" as any "person who was a party to any intercepted wire or oral communication or a person against whom the interception was directed." Id. § 2510(11). Case law has clearly established that under Title III, as under Fourth Amendment principles, a defendant has standing to assert only his own rights and may not successfully challenge the admissibility of evidence on the ground that it was obtained in violation of another person's rights. See, e.g., Alderman v. United States, 394 U.S. 165, 171-72, 176, 89 S.Ct. 961, 965, 968, 22 L.Ed.2d 176 (1969); United States v. Williams, 737 F.2d 594, 616 (7th Cir.1984) (citing cases), cert. denied, ___ U.S. ___, 105 S.Ct. 1354, 84 L.Ed.2d 377 (1985). Rather, a defendant has standing to challenge electronic surveillance only if he can "show that it was directed at him, that the Government intercepted his conversations or that the intercepted communications occurred at least partly on his premises. Unless he can establish one of these events, it is legally irrelevant that the surveillance was unlawful." United States v. Williams, 580 F.2d 578, 583 (D.C. Cir.) (emphasis in original), cert. denied sub nom. Lincoln v. United States, 439 U.S. 832, 99 S.Ct. 112, 58 L.Ed.2d 127 (1978).

Since only defendants Cincotti and Lamattina can establish one of these events, I conclude that none of the other defendants—Angiulo, Gambale, Kazonis, Limone, and Orlandella—has standing to challenge the evidence obtained as a result of electronic surveillance at 51 North Margin Street. Defendants' argument that they should have standing to challenge conversations intercepted at North Margin Street because "the Government is intending to introduce the sum total of all that evidence against all the defendants" is unavailing. Transcript, Oral Argument on Motions, April 29, 1985, at 28. The Supreme Court has specifically stated that suppression of evidence "can be successfully urged only by those whose rights were violated by the search itself, not by those who are aggrieved solely by the introduction of damaging evidence." Alderman, 394 U.S. at 171-72, 89 S.Ct. at 965.

I therefore turn to the grounds for suppression and/or dismissal of the indictment raised by defendants in their motions. Although only defendant Cincotti of the six defendants before this court has standing to challenge the interceptions at 51 North Margin Street, I refer as a matter of convenience to the arguments being raised as being made by defendants, in the plural, since there is no question that all defendants have standing to challenge the interceptions at 98 Prince Street, since the arguments made are, with one exception, equally applicable to both locations and both locations are therefore treated together, and since defendants have raised the same challenges to the evidence obtained at both locations.

B. Taint

Defendants first argue that evidence obtained as a result of electronic surveillance at 98 Prince Street and 51 North Margin Street should be suppressed because the surveillance was conducted pursuant to court orders on applications and supporting affidavits that were the fruit of illegal electronic surveillance. Specifically, they assert that the applications for authorization to conduct surveillance at the two locations were supported by evidence derived from unlawful interceptions conducted between March 1962 and June 1965 at the office of Raymond L.S. Patriarca on Atwells Avenue in Providence, Rhode Island, and between January 19, 1963 and July 10, 1965 at Jay's Lounge in Boston. Therefore, defendants argue, the evidence obtained against them as a result of the Prince Street and North Margin Street interceptions should be suppressed because it is the tainted product of earlier, illegal interceptions. See Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963). They assert that, at the very least, this court should hold an evidentiary hearing to determine whether the evidence which supported the applications for authorization to conduct surveillance at 98 Prince Street and 51 North Margin Street was in fact tainted.

The above argument cannot be sustained. None of the defendants was present at either Atwells Avenue or at Jay's Lounge when the allegedly illegal interceptions took place. None had a proprietary interest in either location. As noted in Section I.A., supra, under both Fourth Amendment principles and Title III law, a defendant has standing to assert only his own rights, and may not successfully challenge the admissibility of evidence on the ground that it was tainted by the illegal infringement of some other person's rights. See, e.g., Alderman v. United States, 394 U.S. 165, 171-72, 176, 89 S.Ct. 961, 965, 968, 22 L.Ed.2d 176 (1969); United States v. Williams, 737 F.2d 594, 616 (7th Cir.1984), cert. denied, ___ U.S. ___, 105 S.Ct. 1354, 84 L.Ed.2d 377 (1985); United States v. Fury, 554 F.2d 522, 525-26 (2d Cir.1977), cert. denied, 436 U.S. 931, 98 S.Ct. 2831, 56 L.Ed.2d 776 (1978). Therefore, even if the interceptions at Atwells Avenue and Jay's Lounge were determined to be illegal, a question I need not address, defendants have no standing to challenge either the Prince Street or the North Margin Street surveillance as tainted by the surveillance at those two locations. That earlier surveillance, even if illegal, did not violate the rights of any of the defendants.

At oral argument, defendants suggested that the court should apply the law of standing as it existed between 1962 and 1965, at the time of the interceptions at Atwells Avenue and Jay's Lounge, rather than the law of standing as it exists today. I reject this suggestion. Defendants have advanced no valid reason to apply the law of standing as it existed between 1962 and 1965, rather than to follow the general...