United States v. Van Horn, CR 83-0-54 to CR 83-0-57.

Citation579 F. Supp. 804
Decision Date30 January 1984
Docket NumberCR 83-0-54 to CR 83-0-57.
PartiesUNITED STATES of America, Plaintiff, v. Douglas VAN HORN, et al., Defendants. UNITED STATES of America, Plaintiff, v. Joseph J. BONGIORNO, et al., Defendants. UNITED STATES of America, Plaintiff, v. Ronald J. BARTREM, et al., Defendants. UNITED STATES of America, Plaintiff, v. Donald E. BIERMAN, Defendant.
CourtUnited States District Courts. 8th Circuit. United States District Court of Nebraska

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Thomas D. Thalken, Bernard Glaser, Stephen Anderson, Omaha, Neb., for the United States.

J. William Gallup, Omaha, Neb., for Brad Smith, Russell Rockwell, Irene Rothe, & Richard Incontro.

Donald B. Fiedler, Omaha, Neb., for Joseph Bongiorno, and Lawrence Barton.

Ronald E. Frank, Omaha, Neb., for Marie Bongiorno.

Robert C. Wester, Papillion, Neb., for Francis Warner.

Michael L. Schleich, Omaha, Neb., for Donald Bierman.

Robert Francis Cryne, Omaha, Neb., for Robert Carroll.

Ralph A. Smith, Martin J. Kushner, Omaha, Neb., for Neil Holmes.

S.J. Albracht, Omaha, Neb., for Royal Cover.

Dennis E. Martin, Omaha, Neb., for James Willy.

Raymond Hasiak, Omaha, Neb., for Mary Lou Whitfield Williams.

Barbara Thielen, Omaha, Neb., for Timothy DeWitt.

MEMORANDUM AND ORDER

BEAM, District Judge.

These matters are before the Court upon defendants' objections to the Magistrate's Findings and Recommendations (filings 109 and 112 in CR 83-0-53; filings 177 and 183 in CR 83-0-54; filings 167, 169, 171, 174 and 180 in CR 83-0-55; and filing 22 in CR 83-0-57). Motions to suppress evidence obtained by interception of wire and oral communications have been filed in CR 83-0-53 by defendants Barton and Holmes; in CR 83-0-54 by defendants Joseph and Marie Bongiorno, and Mark and Wayne Womochil; in CR 83-0-55 by defendants Carroll, Cover, DeWitt, Warner, Williams, and Willy; and in CR 83-0-57 by defendant Donald E. Bierman. The motions were consolidated and referred to United States Magistrate Peck for findings and recommendations under 28 U.S.C. § 636(b)(1)(B) and (C).

An evidentiary hearing was held before the Magistrate on October 25 and 26, 1983. On November 14, 1983, the Magistrate entered an order recommending that all motions to suppress be denied (see, e.g., filing 103 in CR 83-0-53). This Court is required, under 42 U.S.C. §§ 405(g) and 1383(c)(3), to review the findings and recommendations, as well as the motions, briefs, affidavits and other evidence filed, served or adduced in this matter, de novo.

With the exception of defendant Bierman, the above-named defendants have been indicted on charges of (1) conspiracy to distribute cocaine in violation of 21 U.S.C. § 846; (2) distribution and possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1); and (3) use of the telephone to facilitate distribution of cocaine in violation of 21 U.S.C. § 843(b). Defendant Bierman is charged with possession with intent to distribute cocaine under 21 U.S.C. § 841(a)(1).

The indictments were returned as a result of information gathered during a three-year investigation of illegal narcotics distribution in the Omaha area. The investigation was initiated by the Omaha Police Department hereinafter OPD. Subsequently, members of the Douglas County Sheriff's Office, the Nebraska State Patrol, and the Federal Bureau of Investigation hereinafter FBI became involved. Sergeant Verlyn Sieh of the OPD coordinated the investigation. After the FBI became involved in July of 1982, Sergeant Sieh was assisted by Special Agent Thomas Murphy.

At the evidentiary hearing, Special Agent Murphy and Sergeant Sieh testified that the investigation (sometimes referred to as Operation Zookeeper) was designed to gather information leading to the arrest and conviction of "king pin" suppliers of cocaine. Traditional investigative techniques had, apparently, identified several persons engaged in the selling of narcotics, but the ultimate suppliers had not been identified.

Investigative forces first utilized electronic surveillance on July 13, 1982, upon authorization by a Douglas County, Nebraska, District Judge. The affidavits supporting the application for wiretaps were submitted by the County Attorney for Douglas County, Nebraska. The way in which cocaine is allegedly smuggled into this country from South America, diluted, and sold through a multi-level distribution network was described. The affidavit recited in detail the information already obtained from informants whose reliability had been established, undercover police officers, surveillance, and by authorized hookups of pen register devices.

The affidavit concluded that the information provided probable cause to believe that defendant Bartrem1 and others "known and unknown" were engaged in conspiratorial activity relating to the unlawful distribution of the narcotic cocaine, and that telephones at the Brass Knocker Lounge (3012 North 102nd Street), Sunset Auto Sales (1739 South 13th Street), defendant Bartrem's apartment (5123 North 93rd Avenue) and the Prosthetic Dental Laboratory (3024 North 102nd Street) in Omaha were being utilized. The affidavit recited specific instances where conventional investigative techniques had failed to identify the scope of the conspiracy and the ultimate suppliers of the narcotics involved, and that conventional techniques could not be expected to provide this kind of information in the future.

Your affiant, based on the foreoing (sic) has formed an opinion that normal police investigative methods such as surveillance, use of informants and confidential sources, pen register devices, and the use of undercover officers has been tried by the officers and these methods have met with failure and reasonably appear to be unsuccessful in the future in gathering a sufficient amount of evidence to prove Ronald Bartrem and his associates are involved in a conspiracy to distribute controlled substance, or in identifying and prosecuting the source of these controlled substances.

The affiant suggested that investigatory experience had shown that the missing links in the chain of supply could be identified through the use of electronic surveillance.2

Authorization was requested for interception of both incoming and outgoing calls of defendant Bartrem on Omaha number 572-1159 at Bartrem's residence; Omaha numbers 572-9400 and 572-9597 at the Brass Knocker Lounge; Omaha numbers 341-3464 and 341-3465 at Sunset Auto Sales; and Omaha number 571-7007 at the Prosthetic Dental Laboratory. Interception was to continue for a period of thirty days from the date of hookup. Because of the continuing nature of the alleged offenses, the affiant requested that surveillance continue after initial drug-related calls had been intercepted.

The Judge, in an order granting the application for wiretaps, found sufficient probable cause to believe that the telephone numbers enumerated were being used to facilitate the unlawful sale of cocaine. The Judge noted that normal investigative procedures had been tried and had failed. The order specified that both state and deputized federal officers were authorized to make the interceptions, and directed the officers to minimize interceptions not related to the charges under investigation. The order provided that interception continue after drug-related calls were first monitored.

Upon application supported by affidavit, orders authorizing thirty-day extensions for interception of Bartrem telephone conversations were entered on August 12, September 10, October 19, and November 17 of 1982.

In monitoring the calls, law enforcement officials took the following precautions in an attempt to comply with the law. FBI agents utilized in monitoring the telephone calls were deputized by the Governor of the State of Nebraska and designated "State Sheriffs." All monitoring personnel were instructed as to established minimization procedures designed to preserve the privacy of calls unrelated to the trafficking of cocaine. Those procedures included a directive that monitoring cease after sixty seconds unless the call was related to the sale of cocaine. During intervals not covered by wiretap orders from the Douglas County District Court, the monitoring machines were disconnected and instructions not to monitor were placed over the machines.

An affidavit/application similar to the one described above was filed by the Douglas County attorney on July 29, 1982, seeking authority to place an electronic device hereinafter "bug" in defendant Bartrem's apartment and at the Prosthetic Dental Laboratory. The "bugs" were placed for the monitoring of the oral communications of Bartrem and Bongiorno concerning the sale of cocaine. The affiant stated that telephone intercepts had failed, and would most likely continue to fail to identify the sources of supply. An order was issued authorizing use of the bug for thirty days. Orders for continued use of the device were issued up through a thirty-day period ending on November 28, 1982.

After the "bugs" were placed, subsequent affidavit/applications were submitted for various wiretaps on the phones of Harry Gilbert and Joseph Bongiorno which taps allegedly implicate the present defendants in the unlawful purchase and/or distribution of cocaine.

The questions of law presented to the Court are (1) whether agents of the FBI were authorized to monitor the wiretaps; (2) whether state and/or federal law controls the issuance of the wiretaps; (3) whether there was probable cause to believe that unlawful drug transactions were being conducted over the phone lines in question; and (4) whether the government violated Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-20 and Neb.Rev.Stat. §§ 86-701 through 86-707 (Reissue 1976) by (a) failing to terminate the interceptions after drug-related calls were first detected; (b) failing to take steps to minimize the incidents of electronic surveillance; and (c) failing to...

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