United States v. Gazzara

• Decision Date: 22 May 1984
• Docket Number: No. 83 Cr. 406 (ADS).,83 Cr. 406 (ADS).
• Citation: 587 F. Supp. 311
• Parties: UNITED STATES of America v. Joseph GAZZARA, Edward Stanard, Joseph Bohn, Robert Stanard, and Samuel Cazes, a/k/a "Sonny," Defendants.
• Court: U.S. District Court — Southern District of New York

587 F. Supp. 311

UNITED STATES of America v. Joseph GAZZARA, Edward Stanard, Joseph Bohn, Robert Stanard, and Samuel Cazes, a/k/a "Sonny," Defendants.

No. 83 Cr. 406 (ADS).

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

May 22, 1984.

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Rudolph W. Giuliani, U.S. Atty., S.D. N.Y., New York City, for United States of America; Aaron R. Marcu, New York City, of counsel.

Hochheiser & Aronson, New York City, for defendant Edward Stanard; Lawrence Hochheiser, Kenneth J. Aronson, New York City, of counsel.

McCormack & Damiani, Bardonia, N.Y., for defendant Gazzara; Gerard M. Damiani, Bardonia, N.Y., of counsel.

Lawrence F. Ruggiero, New York City, for defendant Joseph Bohn.

Julia P. Heit, New York City, for defendant Robert Stanard.

OPINION AND ORDER

SOFAER, District Judge:

Defendants in this case are charged with conspiring to deal in counterfeit obligations and with possession of counterfeit plates in violation of 18 U.S.C. §§ 37, 474 & 2. Their arrests and indictments grew out of a counterfeiting investigation by Special Agents of the Secret Service. In April 1983 counterfeit currency began appearing around Rockland County, New York. The counterfeiters apparently had some difficulty producing a convincing product, however, since on April 17 police found a barrel containing millions of dollars of discarded, imperfect counterfeit bills floating in the Hudson River near Stony Point, New York. The government intends to show that the conspirators decided in May to get out of the counterfeiting business and that Joseph Bohn, acting as a middleman, arranged for an individual whom he knew only as "Leo" to buy the machinery and materials used in the counterfeiting operation from a man named "Ed" for $150,000. Before agreeing to purchase the materials, "Leo" requested samples of the product, and "Ed" — via middleman Bohn — supplied counterfeit bills in several denominations for the buyer's approval. Unknown to Bohn, the Secret Service had earlier traced suspect bills to Bohn's butcher shop, Charlie's Meats, in Nanuet, New York, and had initiated an undercover operation to crack the conspiracy. Bohn's buyer "Leo" was Secret Service Agent Letterio D'Amico.

On May 19, 1983, D'Amico and another agent, wired with a transmitter enabling a Secret Service surveillance team to monitor the transaction, went to Charlie's Meats on Main Street, Nanuet, to consummate the purchase. Having verified that the promised plates and equipment were in the butcher shop basement, the agents arrested Bohn, as well as Edward Stanard and Joseph Gazzara, two men alleged to be Bohn's confederates who were apprehended at or near the scene of the transaction. The three were indicted June 20, 1983, and on July 29 a grand jury voted a superseding six-count indictment naming these three and Edward Stanard's brother Robert, as well as Samuel Cazes, who subsequently entered a guilty plea.

Each of the four remaining defendants has filed motions to suppress statements and/or evidence obtained at the time of his arrest and in the ensuing investigation, claiming violations of the Fourth, Fifth and Sixth Amendments. Defendant Gazzara moved to suppress his post-arrest statements and evidence seized pursuant to a search warrant issued after his arrest, arguing that the arrest was made without probable cause and that the search warrant was based on "fruits" of the illegal arrest. Gazzara also sought to suppress a witness identification based on a photographic array he contends was impermissibly suggestive. Defendant Bohn moved to suppress admissions made to Secret Service agents on the ground that he was unaware of his rights and was given no Miranda warnings. He moved as well to suppress evidence obtained after a warrantless search of his home which he claims took place without his consent. Robert Stanard moved to suppress evidence acquired in the warrantless search of a room he used in a friend's home on the ground that the search violated the Fourth Amendment because it was accomplished without his consent or the consent of the home's owner. He sought also to suppress two pretrial identifications based on essentially the same photographic array challenged by Gazzara. Edward Stanard moved to suppress his post-arrest statements on the ground that they were taken in violation of his Fifth and Sixth Amendment rights, after he had invoked his right to an attorney.

After seven days of evidentiary hearings and an opportunity for complete briefing on the issues, the suppression motions were deemed fully submitted as of March 25, 1984. Defendants have also moved for severances under Rule 14 of the Federal Rules of Criminal Procedure on the ground that introduction into evidence of the unredacted inculpatory admissions of their codefendants would violate their rights to confront their accusers under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

I. Joseph Gazzara

On the morning of May 19, while the scheduled sale of the printing equipment and plates was taking place behind Bohn's butcher shop, several Secret Service agents were deployed in visual and electronic surveillance of the neighborhood around the shop. One of their specific objectives was to watch for anticipated "counter-surveillance" by Bohn's accomplices. Agent Bodigheimer supervised the surveillance from a specially equipped electronic surveillance van parked up the block from Charlie's Meats. As the action unfolded, he monitored the undercover agents' conversations with Bohn via a transmitter carried by one of the agents and radioed a play-by-play account to the teams of agents dispersed around the town of Nanuet.

At about 10:30 a.m. Agent Boklan, who had been assigned to watch the rear of the shop, drove past the shop's exit and across Orchard Street, and took up a position from which he could observe the exit of the parking lot behind Charlie's Meats. At about 10:35 a.m. Boklan's attention was drawn to a car parked nearby on Orchard Street also in a position to observe the parking lot exit. Boklan saw a person in the car reading a newspaper. He watched the person lower the paper and look around, and at that point recognized him as Joseph Gazzara, a suspect whose photograph he had obtained earlier in verifying an informant's tip. He also recognized the license plate as Gazzara's. He alerted the other agents to Gazzara's presence on the scene.

Shortly after 10:35, immediately after Agent Boklan made eye contact with him, Gazzara pulled out of his parking space and drove to an autobody shop down Orchard street, from which Charlie's Meats was still visible. Agent Boklan followed by car and observed Gazzara conversing with an employee but also appearing to "look around." Boklan drove by the autobody shop and continued down the road. He then returned to his surveillance post behind Charlie's, and noted at about 10:44 that Gazzara had left the autobody shop. Meanwhile, Agents Rohde, Lacey, and Adams, stationed at various points around Nanuet, were reporting Gazzara's movements. They observed Gazzara drive east on Church Street, away from Charlie's Meats, turn north on Demarest, a residential street, take a right hand turn into the dead end of Orchard, back up and turn south on Highview, another residential street, and turn west on Church. He appeared to turn south on Main Street, away from Charlie's, before he was lost from view. Within minutes he reappeared, coming down Main Street from the opposite direction. He passed over an empty parking space in front of Charlie's and parked three to five car lengths beyond the butcher shop. At approximately 10:45 Agent Bodigheimer radioed the other agents that Gazzara was parked on Main Street, seventy-five feet beyond Charlie's Meats, in a position to watch the front entrance to the butcher shop parking lot.

At about this time Agent Bodigheimer overheard and radioed to the agents Bohn's statement that an armed confederate was parked in a van behind the shop and another confederate was "out there" waiting to collect the genuine currency in exchange for the equipment. At about 11:05 Agent D'Amico, who was posing as "Leo," left Charlie's Meats, walked out the front exit of the parking lot to a public phone booth on the corner of Church and Main Streets and telephoned the Secret Service's New York field office in the World Trade Center to report that the equipment had been delivered to the shop — the signal to close in for the arrests. He repeated Bohn's statement that Bohn had two partners, an armed man out back in a van and another man out front. This information was immediately relayed by radio to the agents at the scene.

As D'Amico returned to the butcher shop he walked past Gazzara's car. D'Amico testified, corroborated by Bodigheimer, that he and Gazzara made eye contact as he passed. Shortly after D'Amico reentered the shop Gazzara, who had been parked on Main Street for some twenty minutes without exiting his car, pulled away from the curb and drove off. He was arrested approximately three quarters of a mile from the market. Advised of his rights, he acknowledged that he understood them and agreed to talk to the agents. But he denied any involvement, explaining his movements by saying he had been waiting on Orchard Street for an estimate for work on his car, had noticed Boklan's unmarked police car engaged in what looked like a stakeout, and had stayed around to see what was happening.

Gazzara contends that Secret Service Agents Boklan and Sulivan arrested him illegally, without warrant and without probable cause to believe that he was engaged in criminal activity. He further contends that a warrant to search his home issued several days after his arrest was based partially on information obtained as a result of his illegal arrest and the evidence found there must therefore be suppressed. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)....