United States v. Santoro

Decision Date10 July 1986
Docket NumberNo. 85 CR 100.,85 CR 100.
PartiesUNITED STATES of America, Plaintiff, v. Salvatore SANTORO, Paul Vario, Frank Manzo, Henry Bono, Jr., Harry Davidoff, Frank Calise, John Russo, Heino Benthin, Pasquale Raucci, Leone Manzo, and William Barone, Defendants.
CourtU.S. District Court — Eastern District of New York



Raymond F. Dearie, U.S. Atty., E.D. N.Y., Edward A. McDonald, Atty.-in-Charge, Organized Crime Strike Force, E.D.N.Y., Douglas F. Behm, Sr. Sp. Atty., Strike Force, Brooklyn, N.Y., Norman A. Bloch, Mario DiNatale, Sp. Attys., Strike Force, New York City, for plaintiff.

Samuel H. Dawson, New York City, for Santoro.

Joel Winograd, New York City, for Vario.

Herald Price Fahringer, New York City, for Frank Manzo.

Gustave Newman, New York City, for Bono.

Michael B. Pollack, New York City, for Davidoff.

Schlam, Stone & Dolan, (Peter R. Schlam, of counsel), New York City, for Calise.

Melvin K. Roth, Williston Park, N.Y., for Russo.

Harold H. Seikel, Garden City South, N.Y., for Benthin.

Kenneth J. Weinstein, Garden City, N.Y., for Raucci.

Power, Weiss & Marks (Jonathan Marks, New York City, of counsel), for Leone Manzo.

Joseph Ryan, Mineola, N.Y., for Barone.


McLAUGHLIN, District Judge.

This case centers on the activities of a group of individuals alleged to constitute an enterprise called the Lucchese Crime Family. Count One of the indictment charges ten of the eleven defendants with violating the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961(1)(B), (1)(D) and (5), by conspiring to conduct the affairs of that enterprise through a pattern of racketeering activity. In Count One the government also seeks the forfeiture of almost one million dollars pursuant to 18 U.S.C. §§ 1963(a)(1), (3).

The remaining twenty-two counts charge various offenses, most of which involve businesses in or around John F. Kennedy ("JFK") Airport. The crimes charged include: extortion of labor peace payoffs— bribes to ensure that union labor problems would not disrupt business—from several freight companies; extortion involving a proposed merger of two freight companies; insider trading in the stock of one of those companies; and mail fraud in connection with the purchase of certain bonds.

Defendants have made numerous motions. Some are addressed to the indictment itself. Others seek information or concern the conduct of the government in investigating and prosecuting this case.

I. Manzo Electronic Surveillance
A. Inadequacy of Other Investigative Procedures

Defendants have raised numerous challenges to the electronic surveillance conducted by the government. The first involves two bugs placed in the home of Frank Manzo and a tap placed on Manzo's telephone. Defendants argue that the fruits of these surveillances must be suppressed because the government applications did not meet the "other investigative procedures" requirement of 18 U.S.C. § 2518, which provides, in relevant part:

(1) Each application for an order authorizing or approving the interception of a wire or oral communication ... shall include the following information:
. . . . .
(c) a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous;
. . . . .
(3) Upon such application the judge may enter an ex parte order ... authorizing or approving interception ... if the judge determines on the basis of facts submitted by the applicant that—
. . . . .
(c) normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous;
. . . . .

Defendants contend that the affidavits submitted to establish this "necessity" requirement are insufficient.

The bug orders, which were signed by Judge Weinstein on May 3, 1983 and June 13, 1983, and by Judge Glasser on July 13, 1983, August 12, 1983 and September 14, 1983, rely primarily on the May 3, 1983 affidavit of Federal Bureau of Investigation ("FBI") Special Agent William Carden. The wiretap orders, which were signed by Judge Glasser on July 22, 1983 and by this Court on August 19, 1983 and September 19, 1983, rely on the July 23, 1983 affidavit of Special Agent Martin J. Towey.

Defendants challenge these affidavits on the grounds that they incant ritualistic recitations of the unfeasibility of alternative investigative techniques and provide no reasons specific to this case. If affidavits such as this are sufficient, defendants argue, electronic surveillance would be virtually automatic whenever the government alleges a complicated conspiracy.

The Second Circuit has discussed the inadequacy requirement on many occasions.

The purpose of these "other investigative techniques" requirements "is not to foreclose electronic surveillance until every other imaginable method of investigation has been unsuccessfully attempted, but simply to inform the issuing judge of the difficulties involved in the use of conventional techniques." ... Moreover, the required showing is to "be tested in a practical and commonsense fashion." 1968 U.S.Code & Admin.News 2122, 2190. In short, the requirement is "simply designed to assure that wire-tapping is not resorted to in situations where traditional investigation techniques would suffice to expose the crime." United States v. Kahn, 415 U.S. 143, 153 n. 12, 94 S.Ct. 977, 982, 39 L.Ed.2d 225 (1974).

United States v. Martino, 664 F.2d 860, 868 (2d Cir.1981) (quoting United States v. Fury, 554 F.2d 522, 530 (2d Cir.) (footnote omitted), cert. denied, 433 U.S. 910, 97 S.Ct. 2978, 53 L.Ed.2d 1095 (1977)), cert. denied, 458 U.S. 1110, 102 S.Ct. 3493, 73 L.Ed.2d 1373 (1982).

While traditional surveillance techniques need not be exhausted first if they are "impractical" or costly and inconvenient, United States v. Robertson, 504 F.2d 289, 293 (5th Cir.1974), cert. denied, 421 U.S. 913, 95 S.Ct. 1568, 43 L.Ed.2d 778 (1975), nevertheless Congress —and, we may add, the New York legislature
evinced the clear intent to make doubly sure that the statutory authority be used with restraint.... These wiretap procedures were not to be routinely employed as the initial step in criminal investigation. Rather, the applicant must state and the court must find that normal investigative procedures have been tried and failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous.
United States v. Giordano, 416 U.S. 505, 515, 94 S.Ct. 1820, 1826, 40 L.Ed.2d 341 (1974).

United States v. Lilla, 699 F.2d 99, 102-03 (2d Cir.1983).

The requirement of a "full and complete statement" regarding procedures attempted or considered prior to the application for a wiretap serves both to underscore the desirability of using less intrusive procedures and to provide courts with some indication of whether any efforts were made to avoid needless invasion of privacy. Like other courts, we reject generalized and conclusory statements that other investigative procedures would prove unsuccessful.

Id. at 104 (citations omitted). But "neither the New York nor the federal statute requires that any particular investigative procedures be exhausted before a wiretap may be authorized. Wiretaps are `neither a routine initial step nor an absolute last resort.' Note, The United States Courts of Appeals: 1975-76 Term Criminal Law and Procedure, 65 Geo.L.J. 209, 247 (1976)." Id.

"Viewing the affidavits submitted in support of the wiretap and bug applications in a `"common sense and realistic fashion,'" and with the deference properly accorded to the issuing judge," United States v. Ruggiero, 726 F.2d 913, 924 (2d Cir.) (citations omitted), cert. denied, 469 U.S. 831, 105 S.Ct. 118, 83 L.Ed.2d 60 (1984), I find that the affidavits here satisfy the statutory requirements. They amply detail the wide-ranging nature of the alleged conspiracy and the reasons why traditional methods had proven and would prove to be insufficient.

The enterprise that was being investigated allegedly centered on a major organized crime family that controlled a powerful labor union and used that relationship to engage in various illegal activities—including extortion of labor peace payoffs—involving several businesses operating at JFK Airport. "This was no `small time ... case' ... where simple investigative techniques might have sufficed, but a far-flung conspiracy that was impenetrable except by sophisticated electronic means." United States v. Wilkinson, 754 F.2d 1427, 1434 (2d Cir.), cert. denied, 472 U.S. 1019, 105 S.Ct. 3482, 87 L.Ed.2d 617 (1985).

The affidavits make clear that for fear of retaliation witnesses were unwilling to testify. The same threat of violence made undercover infiltration too dangerous, and the suspicious, close-knit nature of the target group made such an approach quixotic. Physical surveillance and telephone records had proven of limited usefulness because they did not reveal the subject matter of the meetings and conversations, and thus gave little insight into the scope of the conspiracy.

Search warrants were also unlikely to be fruitful because the crimes being investigated were not of a sort to be memorialized in written records. Finally, grand jury investigations and interviews would tip the government's hand by exposing the investigation, thus probably preventing the gathering of evidence as to the full scope of the operation. Thus, viewing the case in a "common sense and realistic fashion," U.S. v. Ruggiero, supra, 726 F.2d at 524, the inadequacy of alternative investigative techniques was amply and specifically demonstrated. See generally U.S. v. Ianniello, 621 F.Supp. 1455, 1464-66 (S.D.N.Y. 1985); U.S. v. Persico, 621 F.Supp. 842, 863-65 (S.D.N.Y.1985).

Defendants argue that the Court, in analyzing the adequacy of...

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