United States v. Marcello, Crim. No. EJD-81-720.

• Decision Date: 12 February 1982
• Docket Number: Crim. No. EJD-81-720.
• Citation: 531 F. Supp. 1113
• Court: U.S. District Court — Central District of California
• Parties: UNITED STATES of America, Plaintiff, v. Carlos MARCELLO, Samuel Orlando Sciortino, and Phillip Rizzuto, Defendants.

531 F. Supp. 1113

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

Crim. No. EJD-81-720.

United States District Court, C. D. California.

February 12, 1982.

Andrea Sheridan Ordin, U. S. Atty., James D. Henderson, Bruce J. Kelton, Los Angeles Strike Force, Dept. of Justice, Los Angeles, Cal., for United States.

Arthur A. Lemann, III, and Provino C. Mosca, New Orleans, La., for defendant Marcello.

Richard Cabellero, Beverly Hills, Cal., for defendant Sciortino.

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

MEMORANDUM

DEVITT, Senior District Judge.

By an order dated November 27, 1981, this court denied defendants' motion to suppress evidence and for an evidentiary hearing on the motion to suppress. Defendants are charged in a three count indictment with conspiring to bribe United States District Judge Harry Pregerson of the Central District of California in order to obtain favorable treatment for defendant Sciortino and others in a criminal prosecution over which Judge Pregerson was presiding.

This motion was brought by defendant Marcello and joined in by the other two defendants. The defendants seek to suppress evidence obtained by the government as a result of certain court ordered wire and oral interceptions. The first interceptions relevant to this motion were authorized in connection with what has come to be referred to as the "Brilab" investigation by the United States District Court in the District of Columbia on May 4, 1979. This authorization covered a telephone listed to one I. Irving Davidson, was extended by that court on June 13, August 20, and September 22, 1979. Additional wire and oral interception authorizations were issued in the Eastern District of Louisiana. These covered defendant Marcello's business and residential telephone numbers, and oral communications occurring at Marcello's office and fishing camp.

An affidavit dated May 4, 1979 signed by Special Agent Charles Walker of the Federal Bureau of Investigation was submitted in support of the May 4 authorization and also served as the basis of the subsequent authorizations. The defendants' grounds for the motion to suppress are that the affidavit of May 4, 1979 did not establish probable cause, that the affidavit contains intentional misrepresentations and omissions by the affiant, that the government failed to make the requisite showing of necessity for the interceptions, and that the government failed to properly minimize the interceptions. The defendants also move to suppress consensual interceptions on the ground that the consenting party to the intercepted conversations failed to give knowing and voluntary consent for the interceptions. Additional grounds asserted for suppression are that 18 U.S.C. § 2510 et seq. is unconstitutional, that the applications for interceptions failed to contain full and complete statement of facts concerning prior applications, and that the intercept orders are directed toward obtaining evidence of future crimes.

The government takes the position that only defendant Rizzuto should be permitted to attack the affidavit offered to establish probable cause for the interceptions occurring in these proceedings. It asserts that Sciortino has no standing to seek exclusion of any evidence obtained through the interceptions, and that Marcello is collaterally estopped from doing so.

STANDING

The government asserts that Sciortino has no standing to challenge the Title III wiretaps to be used in this case obtained as a result of the court orders issued in the District of Columbia and Eastern District of Louisiana because he was neither a party to any of these intercepted conversations, nor did these interceptions occur on his premises. Sciortino has not responded to this assertion. This court's independent in camera examination of the status reports submitted to the courts in the District of Columbia and Eastern District of Louisiana in connection with the Title III interceptions in issue indicate that Sciortino was never intercepted pursuant to these authorizations, nor were his premises ever involved in the interceptions. Accordingly, he does not have standing to seek suppression of the court ordered interceptions. See Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969); United States v. Jabara, 618 F.2d 1319 (9th Cir. 1980).

COLLATERAL ESTOPPEL

The government argues that Marcello is precluded from litigating this suppression motion because these matters were fully litigated between the same parties in another criminal prosecution. The affidavit of May 4, 1979 was the basis for authorizations for interceptions which produced evidence that Marcello sought to suppress in connection with a prosecution in the Eastern District of Louisiana arising out of the Brilab investigation. Substantially the same grounds for suppression were asserted in that motion, which was denied. See United States v. Marcello, 508 F.Supp. 586 (E.D.La. 1981).

It is clearly established that the principal of collateral estoppel applies in criminal cases. See, e.g., Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469 (1970). There the Supreme Court defined the principle of collateral estoppel as follows: "When an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." Id. The Court cautioned that this principle should not be applied in criminal cases "with the hyper-technical and archaic approach of a 19th century pleading book, but with realism and rationality." Id.

The application of the principle of collateral estoppel to criminal proceedings is embodied in the Fifth Amendment guarantee against double jeopardy, id. at 445, 90 S.Ct. at 1195, and hence is generally applied to prevent the government from prosecuting a defendant on the basis of facts resolved in favor of a defendant in a prior acquittal. See, e.g., Brown v. Ohio, 432 U.S. 161, 166, n.6, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); United States v. Powell, 632 F.2d 754, 757-58 (9th Cir. 1980). The government has not cited, nor has this court's independent review of the law revealed, any case in which a defendant has been precluded from litigating an issue presented by a motion to suppress, even though substantially the same issues were litigated in a different criminal prosecution for unrelated crimes.

In United States v. Thoresen, 428 F.2d 654 (9th Cir. 1970), one of two codefendants brought a suppression motion, which was fully considered by the trial court and denied. The indictment had been dismissed as to a second codefendant prior to the motion. Id. at 666. The defendants were reindicted by means of a superseding indictment. The trial court refused to afford either defendant a hearing on the suppression motion. The Court of Appeals held that it was error to deny the defendant who had not previously litigated the suppression motion an opportunity to do so after being reindicted. The court also allowed the defendant who had previously litigated the motion to participate in the hearing afforded his codefendant, based on considerations of fairness and consistency of result. Id. at 667. The same result is appropriate here. Defendant Rizzuto indisputably has a right to proceed with the suppression motion. Under these circumstances, Marcello will also be permitted to proceed with this motion.

PROBABLE CAUSE

The affidavit of May 4, 1979 seeks to establish probable cause on the basis of information related by governmental informant Joseph Hauser, and on the basis of consensual recordings of conversations occurring primarily between Joseph Hauser, I. Irving Davidson and defendant Marcello.

The defendants argue that these portions of the affidavit must be stricken because of the failure of the affidavit to conform with the requirements of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). Specifically, defendants contend that the May 4 affidavit did not contain any allegations regarding Hauser's reliability, nor did it allege any corroborating facts from which the magistrate could determine the credibility of Hauser or the reliability of his information. Absent the information provided by Hauser, the defendants argue that the affidavit fails to establish probable cause.

Prior to the issuance of an order authorizing interception of wire or other communications, the issuing judge must determine that there is probable cause for the interception on the basis of facts supplied by the applicant for the order. 18 U.S.C. § 2518(3)(a). The standard of probable cause is the same as that for a regular search warrant. United States v. Fury, 554 F.2d 522, 530 (2d Cir.), cert. denied, 433 U.S. 910, 97 S.Ct. 2978, 53 L.Ed.2d 1095 (1977), cert. denied, 436 U.S. 931, 98 S.Ct. 2831, 56 L.Ed.2d 776 (1978); United States v. Falcone, 505 F.2d 478, 481 (3d Cir. 1974), cert. denied, 420 U.S. 955, 95 S.Ct. 1338, 43 L.Ed.2d 432 (1975).

This affidavit must be scrutinized in light of the two prong test set forth in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). The affidavit must supply the magistrate with sufficient underlying facts to show 1) the reliability of the information provided by an informant, and 2) that the informant is credible or reliable. If either prong of the Aguilar test is not met, probable cause may still be established by independent corroborating information. Spinelli v. United States, 393 U.S. at 417-18, 89 S.Ct. at 589-90; United States v. Whitney, 633 F.2d 902, 906 (9th Cir. 1980), cert. denied, 450 U.S. 1004, 101 S.Ct. 1717, 68 L.Ed.2d 208 (1981).

The May 4 affidavit contained sufficient information from which the judge could make a determination that the information provided by the government informant was...