United States v. Shipp

• Decision Date: 04 January 1984
• Docket Number: No. 83 Crim. 0574.,83 Crim. 0574.
• Citation: 578 F. Supp. 980
• Parties: UNITED STATES of America, v. Ella SHIPP, a/k/a "Ella Stitman," McAvoy Joseph Shipp, a/k/a "Mac," Marty Frierson, Vivian Elaine Rodriguez, a/k/a "Elaine," Wilfred C. Burch, Sr., a/k/a "Billy," Jane Doe, a/k/a "Tippy," Charles E. Byers, a/k/a "Chuckie," Walter Lee Hill, Leola Moreland, Fred Stitman, Viola Reid, a/k/a "Vida Johnson," Gloria Cannon and Paul Beranbaum, Defendants.
• Court: U.S. District Court — Southern District of New York

578 F. Supp. 980

UNITED STATES of America, v. Ella SHIPP, a/k/a "Ella Stitman," McAvoy Joseph Shipp, a/k/a "Mac," Marty Frierson, Vivian Elaine Rodriguez, a/k/a "Elaine," Wilfred C. Burch, Sr., a/k/a "Billy," Jane Doe, a/k/a "Tippy," Charles E. Byers, a/k/a "Chuckie," Walter Lee Hill, Leola Moreland, Fred Stitman, Viola Reid, a/k/a "Vida Johnson," Gloria Cannon and Paul Beranbaum, Defendants.

No. 83 Crim. 0574.

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

January 4, 1984.

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Rudolph W. Giuliani, U.S. Atty., S.D. N.Y., New York City, for United States of America; Edward J.M. Little, Asst. U.S. Atty., New York City, of counsel.

John Byrnes, New York City, for defendant Ella Shipp.

Audrey Strauss, Mudge, Rose, Guthrie, Alexander & Ferdon, New York City, for defendant McAvoy Joseph Shipp.

Irving Anolik, New York City, for defendant Vivian Rodriguez.

Frank Handelman, New York City, for defendant Wilfred Burch.

Henry Putzel, III, New York City, for defendant Jane Doe.

David Seth Michaels, New York City, for defendant Charles Byers.

Ralph Sperli, Cleveland, Ohio, for defendant Leola Moreland.

Lawrence Stern, New York City, for defendant Fred Stitmon.

James Moriarty, New York City, for defendant Viola Reed.

Stephen Goldenberg, New York City, for defendant Paul Beranbaum.

OPINION

EDWARD WEINFELD, District Judge.

These are a series of motions by various defendants named in a single count indictment filed September 15, 1983, charging them and others with conspiracy to distribute and to possess with intent to distribute heroin and cocaine in violation of 21 U.S.C. § 846 (1982). The charge centers principally about the defendant Ella Shipp and her alleged large scale illegal drug distribution activities in Cleveland, Ohio and New York City, in concert with other defendants during the period from on or about January 1982 through mid-September 1983.

On September 7, 1983, shortly before the return of the indictment, a complaint was filed accompanied by an extensive affidavit of Special Agent Michael E. Mott of the New York FBI office submitted for the limited purpose of establishing probable cause for the issuance of warrants to search described premises and warrants to arrest named defendants. The affidavit recites details of the activities of named defendants based in part upon information derived from previously authorized wiretap orders. The affidavit is virtually a bill of particulars of each defendant's purported conduct during the course of the alleged conspiracy. In substance, it charges that in New York City Ella Shipp was assisted by her husband, defendant McAvoy Joseph Shipp ("Mac Shipp"), who introduced her to a heroin source in September, 1981, and thereafter distributed narcotics, by her son, defendant Marty Frierson ("Frierson"), who distributed and stored narcotics and collected the proceeds from drug sales, by defendants Wilfred C. Burch, Sr. ("Burch"), Viola Reid ("Reid"), Gloria Cannon ("Cannon"), and Paul Beranbaum ("Beranbaum"), who distributed narcotics obtained in New York, and by defendant Vivian Elaine Rodriguez ("Rodriguez"), who was one of Ella Shipp's principal suppliers of cocaine.

The complaint further alleges that, in Cleveland, Ella Shipp's chief aide was one "Tippy," now known to be Ella Shipp's sister, defendant Margaret Wilkinson ("Wilkinson"), and that defendants Charles Byers ("Byers"), Walter Lee Hill ("Hill"), Fred Stitmon ("Stitmon"), and Leola Moreland ("Moreland") assisted in transporting drugs from New York to Cleveland and in their later distribution.

Defendants Mac Shipp, Ella Shipp, Stitmon, Burch and Moreland move to suppress items of evidence obtained as a result of the telephone surveillance orders, and search and arrest warrants allegedly issued in violation of the United States Constitution and federal statutes. A number of defendants also move to dismiss the indictment and for severance on grounds of mis-joinder and prejudicial spillover; also they seek extensive pretrial discovery of material claimed to be necessary to defend against the charge.¹

I MOTIONS TO SUPPRESS EVIDENCE OBTAINED PURSUANT TO COURT-ORDERED WIRETAPS

On October 20, 1982, Judge David N. Edelstein of this Court authorized the wiretap of Ella Shipp's telephone at her New York City apartment. Pursuant to this order, which was based upon detailed information sworn to by FBI Agent Mott, the government recorded various telephone conversations which it contends indicate ongoing conspiratorial conduct in the distribution of narcotics in the New York and Cleveland areas. The wiretap was terminated on November 19, 1982. On December 6, 1982, Judge Robert L. Carter granted an extension of the prior wiretap order and subsequent monitoring yielded alleged additional incriminating conversations involving Shipp or one or more of the other defendants.

A. PROBABLE CAUSE

Defendant Moreland, joined by other defendants, seeks to suppress all conversations that were intercepted and any evidence derived therefrom upon the ground that there was no probable cause for the issuance of either wiretap order as required by 18 U.S.C. § 2518(3).² It is urged that the information relied upon to establish probable cause was stale, that Ella Shipp's use of the telephone to make drug sales was not sufficiently described to justify a belief that information concerning the specified offenses would be obtained by a wiretap, and that pen registers³ showing links between the Shipp telephone and those of individuals associated with large scale narcotics operations were inconclusive. Defendant Stitmon challenges the probable cause finding on the basis that there was no probable cause to believe that he was involved with Ella Shipp's organization; Stitmon also asserts that the affidavit supporting the application for a wiretap order contained material, false information, and that, if the order is not invalid outright, he is at least entitled to an evidentiary hearing. Moreland also attacks the probable cause findings underpinning the order extending the wiretap.

Under the federal wiretap statute, the provisions of which are contained in Title III of the Omnibus Crime Control and Safe Streets Acts of 1968, as amended,⁴ before a wiretap order may issue, a judicial officer of competent jurisdiction must find, on the basis of the application, that:

... there is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in 18 U.S.C. § 2516 (1982);

... there is probable cause for belief that particular communications concerning that offense will be obtained through such interception sought in the application;

. . . . .

and there is probable cause for belief that the facilities from which, or the place where, the wire or oral communications are to be intercepted are being used, or are about to be used, in connection with the commission of such offense, or are leased to, listed in the name of, or commonly used by such person.⁵

In determining probable cause under this statute the same standard is applied as in determining whether probable cause exists to issue search or arrest warrants.⁶ The standard in reviewing a previous determination of probable cause for the issuance of a warrant by a judicial officer is "only a probability, and not a prima facie showing of criminal activity."⁷

Moreland's first argument, that the information relied upon was stale, is refuted by the facts and numerous decisions addressing similar arguments in situations involving ongoing criminal activity. Specifically, Moreland asserts that between September 20, 1982 and the issuance of the wiretap order on October 20, 1982, the information submitted to Judge Edelstein "failed to provide a factual predicate" for a finding of probable cause. Entirely apart from the fact that Judge Edelstein's finding is entitled to substantial deference,⁸ the contention is without substance; it disregards the factual allegations of Agent Mott's affidavit. Most pointedly, the affidavit attests that on October 11, 1982, nine days before issuance of the wiretap order, Ella Shipp told "Source A" that defendant Byers would be handling heroin distribution in Cleveland for her organization. At this time Ella Shipp also offered to sell Source A "a couple of kilos" of cocaine. Moreover, even assuming, contrary to the affirmations of Agent Mott, that nothing indicating probable cause occurred in the month prior to the wiretap order, our Court of Appeals has held that "where the supporting affidavits present a picture of continuing conduct or an ongoing activity, as contrasted with isolated instances of illegal acts, the passage of time between the last described act and the presentation of the application becomes less significant."⁹ Contained in the twenty-four pages of Agent Mott's allegations supporting probable cause are numerous facts from which a conclusion of ongoing criminal activity, emanating from the Shipp apartment in New York, could readily be drawn. As early as June 15, 1982, Ella Shipp had told undercover agents of her $2000 per month rental apartment in New York, her distribution of heroin purchased in New York, and her $2000 per month phone bills arising from her drug business. On July 1, 1982, Shipp provided FBI Agent Theodore J. Domine, Jr. ("Domine"), who in an undercover capacity had purchased heroin from Ella Shipp in Cleveland, with the telephone number at her New York apartment. The clear intent and purpose was to discuss and negotiate illicit drug transactions. During July, August, and September, Agent Domine had no fewer than nine drug-related conversations with Ella Shipp involving the telephone in her New York apartment.¹⁰ Agent Domine and Agent John E. Bell, Jr., had personally visited the Shipp apartment on July 21, 1982, and while there were told by Mac Shipp that "his cocaine supplier would soon be there." On this occasion Ella...