United States v. Marcello, Cr. EJD-81-720.

• Decision Date: 15 August 1983
• Docket Number: No. Cr. EJD-81-720.,Cr. EJD-81-720.
• Citation: 568 F. Supp. 738
• Parties: UNITED STATES of America, Plaintiff, v. Carlos MARCELLO, Samuel Orlando Sciortino, and Philip Rizzuto, Defendants.
• Court: U.S. District Court — Central District of California

568 F. Supp. 738

UNITED STATES of America, Plaintiff, v. Carlos MARCELLO, Samuel Orlando Sciortino, and Philip Rizzuto, Defendants.

No. Cr. EJD-81-720.

United States District Court, C.D. California.

August 15, 1983.

Stephen S. Trott, U.S. Atty. by James D. Henderson, Los Angeles Strike Force, Dept. of Justice, Los Angeles, Cal., for the U.S.

Arthur A. Lemann, III, New Orleans, La., for defendant Marcello.

Donald B. Marks, Beverly Hills, Cal., for defendant Sciortino.

Thomas R. Dyson, Jr., Washington, D.C., for defendant Rizzuto.

MEMORANDUM AND ORDER

DEVITT, Senior District Judge.

This matter is before the court on defendants' motion for an evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) and a new trial under Rule 33, Federal Rules of Criminal Procedure. They claim newly discovered evidence shows contamination of the government's wiretap evidence used at trial, and they reassert their claim of outrageous government conduct. Basically, it is claimed that former F.B.I. agent H. Edward Tickel unlawfully entered defendant Marcello's fishing camp in Louisiana in January 1980 and that this tainted the wire and microphone evidence utilized at trial.

While all three defendants join in the motion, it is doubtful that Sciortino and Rizzuto have standing to move to suppress under Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), or Franks v. Delaware, supra, because neither of them had a legitimate Fourth Amendment expectation of privacy as to Marcello's fishing camp. See United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980).

The government has responded to defendants' motion with sworn affidavits of F.B.I. agents Leake, Hughes and Walker which contradict the hearsay statement of defendant Rizzuto's attorney, Thomas R. Dyson, Jr., that former agent Tickel did unlawfully enter Marcello's camp. Tickel has not stated by affidavit that he entered the camp. His F.B.I. conferees at the time have made sworn statements which persuade that he did not do so. I conclude from the evidence submitted that Tickel did not unlawfully enter Marcello's camp.

But assuming the unlawful entry as claimed, there is no showing that the entry resulted in the government's obtaining, or using, any information or evidence obtained from that entry. It is not disputed that electronic surveillance was never activated at Marcello's camp. The allegations of wrongdoing are imprecise and conclusory. It might well be asked — if Tickel did enter the camp illegally, what of it? What harm did this occasion Marcello or the other defendants?

Such interceptions as were obtained and used at trial pursuant to the January 15, 1980 order were based, the affidavit supporting the order reflects, upon independent, untainted information obtained prior to the alleged Tickel entry, and hence, support the court's finding of probable cause. See Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 183, 64 L.Ed. 319 (1920); United States v. Vicknair, 610 F.2d 372, 381-82 (5th Cir.1980). Hence, there has been no showing to justify granting the motion on the "poisonous tree" doctrine of Wong Sun v. United States, supra.

Again, assuming the truthfulness of the Tickel unauthorized entry, there has been no showing that the failure to report this to the judge was a "material omission" under the Franks v. Delaware decision, supra. There must be a substantial preliminary showing under Franks that there were omissions and that such omissions were intentional or occurred because of...