United States v. Volpe, Crim. No. H-76-37-H-76-41 and H-75-123.

• Citation: 430 F. Supp. 931
• Decision Date: 15 March 1977
• Docket Number: Crim. No. H-76-37-H-76-41 and H-75-123.
• Court: United States District Courts. 2nd Circuit. United States District Court (Connecticut)
• Parties: UNITED STATES of America v. Anthony D. VOLPE et al. (two cases). UNITED STATES of America v. Girolomo SANTUCCIO. UNITED STATES of America v. Anne STEFANOU. UNITED STATES of America v. James SMUCKLER. UNITED STATES of America v. John BARONE et al.

430 F. Supp. 931

UNITED STATES of America v. Anthony D. VOLPE et al. (two cases).

UNITED STATES of America v. Girolomo SANTUCCIO.

UNITED STATES of America v. Anne STEFANOU.

UNITED STATES of America v. James SMUCKLER.

UNITED STATES of America v. John BARONE et al.

Crim. Nos. H-76-37-H-76-41 and H-75-123.

United States District Court, Connecticut.

March 15, 1977.

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Peter C. Dorsey, U.S. Atty., New Haven, Conn., Paul E. Coffey, Peter R. Casey, III, Special Attys., Dept. of Justice, Hartford, Conn., for United States.

F. Mac Buckley, Hubert J. Santos, Hartford, Conn., for defendants Volpe and Sullivan.

Joseph E. Fazzano, William J. Dolan, Hartford, Conn., for defendant O'Brien.

Brenda A. Eckert (Shipman & Goodwin), Hartford, Conn., for defendant Della Ferra.

Richard S. Cramer, Asst. Federal Public Defender, Hartford, Conn., for defendant Boornazian.

Thomas J. Prior, Manchester, Conn., for defendant Poulin.

Eliot J. Nerenberg, West Hartford, Conn., for defendant Castagna.

John L. Hayes, Hartford, Conn., for defendant Di Beneditto.

Thomas G. Dennis, South Windsor, Conn., for defendant Jacomini.

S. V. Faulise, Hartford, Conn., for defendant Bovino.

Maxwell Heiman (Furey, Donovan & Heiman), Bristol, Conn., for defendant Chiarizio.

Leonard I. Shankman, Hartford, Conn., for defendant Morris.

S. Robert Verillo, Hartford, Conn., for defendant Cecchini.

Anthony F. Pagano, Manchester, Conn., for defendant Speziale.

Denuzze & Pignatella, New Britain, Conn., for defendant Mascola.

Edward R. Smoragiewicz, Hartford, Conn., for defendant Irace.

Paul F. McQuillan, Andre M. Kocay (Januszewski, McQuillan & DeNigris), New Britain, Conn., for defendant Lepito.

M. Donald Cardwell, Hartford, Conn., for defendant Guerriero.

Peter L. Truebner, Hartford, Conn., for defendant Campanelle.

John P. McKeon, Hartford, Conn., for defendant Grant.

Aaron P. Slitt, Hartford, Conn., for defendant Santuccio.

F. Mac Buckley, Hubert J. Santos, Hartford, Conn., for defendant Stefanou.

Edward W. Hebb, West Hartford, Conn., for defendant Smuckler.

Richard S. Cramer, Asst. Federal Public Defender, Hartford, Conn., for defendant Byrne.

Albert J. Genua, Jr., Hartford, Conn., for defendant Lisella.

J. Patrick Dwyer, East Hartford, Conn., for defendant Barone.

William P. Murray, Jr., West Hartford, Conn., for defendant Rago.

John L. Hayes, Hartford, Conn., for defendant Grande.

RULING ON DEFENDANTS' CONSOLIDATED MOTIONS TO SUPPRESS ELECTRONIC SURVEILLANCE EVIDENCE

CLARIE, Chief Judge.

The defendants have filed consolidated motions and memoranda requesting the suppression of evidence obtained by the Government through searches and seizures, in particular through wire and oral interceptions carried out in pursuance of court orders issued under Rule 41, Fed.R.Crim.P., and 18 U.S.C. § 2518(10). Said motions request this Court to suppress all evidence originating in the surveillance authorized under the foregoing court orders. A multiple count indictment was handed down by the Grand Jury that considered the seized evidence, charging more than twenty defendants with the operation of an illegal gambling business, and with multiple other crimes carried out at their base of operations, a concentrated center of criminal activity. The law enforcement information emanating from the abovementioned surveillance related to the crimes of extortion, obstruction of justice, hi-jacking, conspiracy, and further revealed a general knowledge of narcotics violations, arson, prostitution, and other organized crime.

The defendants challenge the Court's interception orders on several grounds, namely: (1) that any statute authorizing a covert entry of private premises to effect a wire and oral interception is unconstitutional on its face and as applied to these defendants; (2) that certain defendants were not named in the Government's application, although there was reasonable cause to anticipate their conversations would be intercepted, an alleged violation of 18 U.S.C. §§ 2518(1)(b)(iv) and 2518(4)(a); (3) that all normal investigatory procedures had not been first exhausted, before granting authority to intercept; (4) that the communications in question were unlawfully intercepted, because the authorization was insufficient and the interceptions were not made in conformity with the court's order and the statute; (5) that the information in the applications, which formed the basis for the court's order, contained facts obtained from prior interceptions, which were themselves unconstitutional; (6) that the use of the pen register device was improperly granted and the authority for its use was unconstitutionally broad; and finally (7) that the information set out in the application was based on remote hearsay and was insufficient to establish probable cause for the granting of such an order.

After a full hearing on the issues, wherein testimonial evidence was offered by the parties on all material facts set out in the Government's original and supplemental applications, the Court finds that, under the circumstances of this case, the court's orders and their subsequent execution were reasonable and lawful; accordingly, the consolidated motions of the defendants to suppress are denied.

Facts

On December 16, 1974, Peter R. Casey, III, a special attorney and investigative law enforcement officer with the Organized Crime and Racketeering Section of the United States Department of Justice, as defined in 18 U.S.C. § 2510(7), being duly authorized in writing by the Attorney General of the United States, William B. Saxbe, who was acting pursuant to Congressional authority, 18 U.S.C. § 2516, made an application to this Court for an order directing the interception of wire communications to and from the telephone number XXX-XXX-XXXX, at 103 New Britain Avenue, in Hartford, Connecticut.

Said application further requested authorization for the interception of oral communications from the premises of an enterprise known as the O'Brien-Sullivan Home Improvement Company, located at the aforesaid New Britain Avenue address. The statements set forth in the verified application, along with the testimony presented at an in-chambers record hearing, disclosed that an on-going investigation was being conducted under 18 U.S.C. §§ 1955 and 371, into possible violations of the law being committed by Michael T. O'Brien, John E. Sullivan, Ronald LeConche, Ernest Verdone, James Smuckler, John X. LeConche, Victor Parente, Ralph Irace, John A. Abronzio, Elliott Leff and others yet unknown, all operating out of the above-stated address.

Special Agent Dewey L. Santacroce of the Federal Bureau of Investigation, an experienced and reliable investigator with twenty-one years of FBI employment, filed a 37-page affidavit with the Court describing the history of the premises and his grounds for believing that a persistent illegal gambling business was being conducted at said location. This report recited a summary of prior law enforcement investigations and special surveillance efforts focusing upon this location for the period commencing August 2, 1974 through November 27, 1974. The affidavit disclosed a history of extensive criminal gambling activities on the part of many of the regular patrons at the premises, and it described the bare physical interior of the alleged business facilities. The store space was described as being held out to the public as the O'Brien-Sullivan Home Improvement Company, a street-level front with two large plate glass windows curtained from outside viewers by Venetian blinds which could be drawn.¹ Above the exterior door hung a large sign attached to the building which stated, "Insurance & Real Estate, Protect What You Have." Inside there was a room separated from a rear area by an 8-foot high paneled partition, running from the floor to the ceiling. In the front of the partitioned area opposite the entrance door there was a one-way view mirror, so that anyone working at the desk to the rear of the partitioned barrier, could observe the identity of strangers who entered, and give sufficient warning time to take necessary protective action against the intrusion of law enforcement officers. From the known facts, this supposed business premises was not a residence; nor was it a place where any business of a legitimate nature was being conducted. (In-chambers Tr., Dec. 16, 1974, at 17-18). In particular, the location was not a place for the sale of insurance or real estate. The office was unquestionably a sham and a "criminal blind" designed and maintained solely for the conduct of criminal activities.

A significant factor in this Court's authorization of oral interceptions by installing a "bug-microphone" within the premises was the verified information that "total telephone service," a new and devious adjunct to criminal operations, was in use at the 103 New Britain Avenue premises. Through the use of "total telephone service," a telephone call received at that address could be automatically switched to another telephone or telephones, by simply pushing a transfer button, and the call could subsequently be switched to still another number, (In-chambers Tr., Dec. 16, 1974, at 22), thus making it impossible to intercept and monitor the call, or to trace it to its ultimate receiver. This circumstance indicated that a telephone wire intercept alone would be likely to prove fruitless.

All of these factors were crucial to the Court's appraisal of the facts submitted by the prosecution, and in the Court's decision to authorize a covert entry. Responsible law enforcement officers represented that, to effectively carry out the placement of the bug-microphone for purposes of oral interception, there was no other practicable alternative.

On December 16, 1974, the prosecutor requested authority from the Court to install a pen register device intercepting the digit numbers of outgoing calls from the telephone...