United States v. Ricco, 75 Cr. 411.

• Decision Date: 28 September 1976
• Docket Number: No. 75 Cr. 411.,75 Cr. 411.
• Citation: 421 F. Supp. 401
• Parties: UNITED STATES of America v. Anthony RICCO, a/k/a "Tony Bragiole", Defendant.
• Court: U.S. District Court — Southern District of New York

421 F. Supp. 401

UNITED STATES of America v. Anthony RICCO, a/k/a "Tony Bragiole", Defendant.

No. 75 Cr. 411.

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

September 28, 1976.

COPYRIGHT MATERIAL OMITTED

Robert B. Fiske, Jr., U. S. Atty., S. D. N. Y., New York City, for the U. S.; Dominic F. Amorosa, Asst. U. S. Atty., of counsel.

Goldberger, Feldman & Breitbart, New York City, for defendant; Paul Goldberger, J. Jeffrey Weisenfeld, New York City, of counsel.

MEMORANDUM

LASKER, District Judge.

Anthony Ricco seeks to suppress certain wiretap recordings and their transcriptions which the government proposes to introduce as evidence against him at his trial for alleged narcotics violations. Pursuant to 18 U.S.C. §§ 2516(2), 2518(8)(a) and N.Y. Crim.Proc.L. § 700.50(2), an evidentiary hearing was held August 31 and September 1, 1976, as to the reasons for delay in sealing the wiretaps.¹ We find that the delay was not excusable under New York law and accordingly the wiretaps may not be introduced in evidence at trial.

On July 24, 1973, Justice Hughes of the New York Supreme Court, Westchester County, signed an order authorizing a wiretap of telephone numbers listed to V. O'Donnell. By its terms the order was to expire no later than August 22nd. On August 17th, on the basis of information derived from the O'Donnell tap, Judge John Cousins of the Westchester County Court signed an order authorizing wiretapping of Peter Mengrone's phone. This order was extended by Judge Cousins on September 18th and again on October 18th, each time on the basis of conversations intercepted during the preceding wiretap period.

Either late on October 23 or on October 24, 1973, the Mengrone wiretap was terminated, and Mengrone and several others allegedly involved in criminal activity with Mengrone were arrested. On November 5, 1973, Judge Cousins sealed² the box containing the original tape recordings of these wiretaps. There was thus a twelve or thirteen day hiatus between termination of the tap and sealing of the recording.

I.

Ricco argues first that the Mengrone tapes must be suppressed because they result from a previous wiretap (the O'Donnell tap) not conducted in accordance with statutory requirements. 18 U.S.C. § 2515. The government concedes that the O'Donnell tapes were not sealed in compliance with the statute, and that they provided the probable cause for issuance of the Mengrone authorization. However, the government argues, since Ricco was neither the subject of nor a party to the O'Donnell wiretaps, he therefore is not an "aggrieved person" with respect to the taps under the federal statute and thus, lacks standing to assert claims based on their illegality. The government is correct in its assertion that Ricco lacks standing³ to dispute the authorization to conduct the Mengrone wiretaps on the grounds that the O'Donnell taps were illegal. See United States v. Wright, 524 F.2d 1100 (2d Cir. 1975); United States v. Garcilaso de la Vega, 489 F.2d 761 (2d Cir. 1974). No legally protected interest of Ricco's was injured by procedural defects in the O'Donnell wiretap, which provided ample probable cause for issuance of the Mengrone authorization.

II.

The government concedes that Ricco has standing to seek suppression of his own conversations on the Mengrone tapes, but argues that he lacks standing to suppress any conversations in which he did not participate because of the "prohibition against assertion of another's rights" articulated in cases involving Fourth Amendment or analogous interests. United States v. Scott, 164 U.S.App.D.C. 125, 504 F.2d 194, 197 n.5 (D.C.Cir. 1974).⁴ Our view is that Ricco's standing with respect to these tapes is much broader, and that if the Mengrone tapes were not sealed in accordance with statutory requirements, all of them must be suppressed as to Ricco. The limited standing rules relevant where evidence is claimed to be excludable because procured in violation of the Fourth Amendment derive from the purpose of that exclusion: deterrence of police misconduct which violates individual privacy rights secured by the Fourth Amendment. Alderman v. United States, 394 U.S. 165, 171-76, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969); United States v. Tortorello, 533 F.2d 809 (2d Cir. 1976). No truth or reliability interests are promoted by this "exclusionary rule;" frequently, otherwise competent and probative evidence is excluded merely because it was procured in an unlawful manner.⁵

These rules of standing are inapposite in the present circumstances. Ricco does not complain that the government unreasonably seized Mengrone's conversations, but that inadequacies in the sealing procedure cast doubt on the integrity of the evidence. Any litigant has "standing" to challenge the reliability of evidence to be presented against him or her at trial. Both the United States Court of Appeals for the Second Circuit and the New York Court of Appeals have treated the sealing requirement as one going to the integrity of the tapes and affecting their admissibility into evidence.⁶United States v. Gigante, 538 F.2d 502, 506 (2d Cir. 1976); People v. Nicoletti, 34 N.Y.2d 249, 356 N.Y.S.2d 855, 313 N.E.2d 336 (1974). In other words, the sealing requirement proscribes certain governmental conduct in order to enhance the reliability of evidence, rather than to prevent unreasonable searches and seizures. Ricco's interest in suppressing these tapes is therefore within the zone of interests which the sealing requirement seeks to protect, Association of Data Processing Service Orgs. v. Camp, 397 U.S. 150, 152-57, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970); and Ricco may be injured just as much by the jury's hearing or viewing inaccurate reproductions of conversations about him as by inaccurate reproductions of his own conversations. Thus, upon timely objection wiretap evidence which has been improperly sealed must be excluded from the trial⁷ of any person just as an improperly certified document would be excluded, i. e., held inadmissible.

III.

The question then, is whether the Mengrone tapes (or any transcriptions or recordings made from them) are admissible at Ricco's trial.

The government argues that since the second extension order, signed on October 18th, authorized the wiretap to continue until November 17th, and since the tapes were sealed on November 5th, they were sealed "12 days before the expiration of the period of the third eavesdropping warrant . . . and were then sealed . . . well within the requisite time period." We disagree.

On page 3 of Judge Cousin's third eavesdropping order, in effect at the time the tap itself was terminated, it is ordered that:

"the authorized eavesdropping shall not terminate upon the initial seizure of certain conversations but shall be in force and effect until the seizure of sufficient evidence to justify the arrest of the principals in this criminal conspiracy which is being investigated and the identity of the co-conspirators and the extent of the conspiracy is determined . . ."

Immediately following this paragraph, the Court ordered that:

"the relief granted herein is to take effect on the 19th day of October . . . and shall be in full force and effect twenty-four hours per day for thirty days up to and including the 17th day of November 1973, or until the seizure of the aforementioned evidence, whichever shall occur first . . ."

The relief sought before and granted by Judge Cousins was an extension of the initial wiretap order. These paragraphs clearly state that the extension was to be in effect only until November 17th or such earlier time as the police had gathered sufficient evidence to make the necessary arrests. That earlier time had arrived on October 24th, when the tap was terminated and arrests were made. The New York statute (like the federal counterpart) provides that "Immediately upon the expiration of the period of an eavesdropping warrant . . ." the tapes shall be made available to a judge for sealing. N.Y.Crim. Proc.L. § 700.50(2). In this case, the "expiration of the period of an eavesdropping warrant" occurred, by application of the terms of the order, on October 24th.

The judge's order requiring termination of the tap upon gathering enough evidence was in turn required by the New York statute. N.Y.Crim.Proc.L. § 700.30 states that every eavesdropping warrant must contain "a provision that the authorization to intercept . . . must terminate upon attainment of the authorized objective, or in any event in thirty days." An argument could be made that "the period of an eavesdropping warrant" mentioned in § 700.50 refers to the maximum time period stated in the order, whereas the "authorization to intercept" is distinct from the "period" of the warrant and refers to the authorization as stated in the order. The language of the second paragraph on page 4 of Judge Cousin's order, quoted infra at page 410, might support such a distinction.

The fundamental objection to this reading of the statute, however, is that it is inconsistent with the purpose of the sealing requirement. That purpose is to place the custody and disposition of evidence obtained through the taps as much as possible under the control and supervision of the court, thereby avoiding the potential for tampering or for inadvertent abuse of the evidence. United States v. Gigante, supra. This being the purpose it would not be rational to require the "immediate" sealing of wiretaps when the investigation continues up to the last day of a thirty-day order, but to permit sealing to be postponed until the end of the thirty-day period where the wiretap investigation itself terminates on, say, the second or third day of the thirty-day period. Under the government's view, in the latter instance the police could retain the tapes for 28 or 29 days beyond the dates that the wiretap was terminated. That is hardly consistent with the purpose described above, particularly since transcription and duplication may...