US v. Conley
| Decision Date | 27 June 1994 |
| Docket Number | Crim. No. 91-178. |
| Parties | UNITED STATES of America, v. John F. "Duffy" CONLEY, William C. Curtin, Sheila F. Smith, John Francis "Jack" Conley, Thomas "Bud" McGrath, Mark A. Abbott, Thomas Rossi, William Steinhart, Roberta Fleagle, Robin Spratt, Monica C. Kail, William J. Reed, Joanne T. Smith, Kenneth "Ron" Goodwin, Lawrence N. "Neudy" Demino, Sr., Christopher "Chris" Kail, Joseph A. Devita, Frank Garofalo, Thomas D. Ciocco, Michael Sukaly, Phillip M. "Mike" Ferrell, Anestos "Naz" Rodites, and William E. Rusin, Defendants. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
COPYRIGHT MATERIAL OMITTED
Frederick W. Thieman, U.S. Atty., W.D.Pa., James R. Wilson, Asst. U.S. Atty., William D. Braun, Crim. Div., U.S. Dept. of Justice, Washington, DC, for plaintiff.
James Wymard, William Difenderfer, Anthony Mariani, Ellen Viakley, Gary Gerson, Caroline M. Roberto, Joel Johnston, Stanley Greenfield, Martha Bailor, Ray Radokovich, Carmen Martucci, Lee Markovitz, Edward J. Osterman, William Acker, Foster Stewart, Joseph Kanfoush, Carl Max Janavitz, Raymond M. Maloney, John Goodrich, Gary B. Zimmerman, Vincent Baginski, John Zagari, James Andring, Pittsburgh, PA, for defendants.
Before the Court is Defendant John F. "Duffy" Conley's motion to suppress his statement at the Main Hotel on October 30, 1989. (Document No. 377, in part).
1. During the month of October, 1989, Federal Bureau of Investigation Special Agent John Donnelly ("S.A. Donnelly") was in the midst of an investigation into organized crime and gambling devices.
2. Although there was an ongoing, independent federal investigation of John F. "Duffy" Conley ("Conley"), S.A. Donnelly was not aware of it. Conley was not a target of S.A. Donnelly's investigation.
3. S.A. Donnelly sought out Conley, whose name had surfaced in the records of the Arnold Coin Company during S.A. Donnelly's investigation, in order to secure Conley's cooperation in his investigation.
4. In the middle of October, 1989, S.A. Donnelly arrived unannounced at Conley's office at the Windgap Avenue facility of Duffy's Vending, Conley's company.
5. S.A. Donnelly introduced himself to Conley as an FBI agent and indicated that he wanted Conley to give him information regarding video poker machine operations.
6. Conley, who had legal problems and concerns regarding his own video poker machine operations, was alarmed by the presence of an FBI agent. Conley asked whether the conversation would be off the record.
7. S.A. Donnelly told Conley that he was willing to speak off the record and Conley was not the target of the investigation. Both S.A. Donnelly and Conley understood that nothing said would be used against Conley.
8. Although never getting specific about what could be done for Conley, S.A. Donnelly intimated that he was in a position to help Conley. S.A. Donnelly contemplated assisting Conley if Conley agreed to enter into a relationship as a cooperating witness.
9. S.A. Donnelly directed Conley's attention to poker machine gambling. He inquired into Conley's relationships with other vending companies in western Pennsylvania. He also inquired into Conley's knowledge of the activities of Ninny Lagatutta, Sonny Ciancutti and the Arnold Coin Company.
10. Conley stated that he knew Ninny Lagatutta was in the vending business. Conley and S.A. Donnelly discussed a video poker machine location in the Brookline section of Pittsburgh that was owned by Lagatutta. Conley did not tell S.A. Donnelly of any illegal activities by any person or company in response to S.A. Donnelly's inquiries.
11. S.A. Donnelly asked Conley if he was willing to discover information about the aforementioned persons and company. S.A. Donnelly primarily focused his attention on Ninny Lagatutta.
12. Conley was non-committal, neither agreeing or refusing to seek the requested information on behalf on S.A. Donnelly.
13. S.A. Donnelly and Conley agreed to get in touch in the future, and S.A. Donnelly gave his card to Conley.
14. Neither S.A. Donnelly nor Conley took notes during, or otherwise recorded, the encounter at Windgap.
15. S.A. Donnelly maintained a friendly, non-adversarial demeanor throughout the encounter at Windgap.
16. The encounter, which lasted between five and twenty minutes, ended amicably.
17. On October 30, 1989 S.A. Donnelly and Special Agent Patricia Moriarity went to the Main Hotel in Carnegie, Pennsylvania in a limited undercover capacity.
18. Although S.A. Donnelly had information that the Main Hotel was a location where Conley maintained video poker machines, he did not "know positively" that this information was accurate.1
19. S.A. Donnelly was still conducting his independent investigation, in which Conley was not a target.
20. S.A. Donnelly and S.A. Moriarity were sitting at the bar having coffee when Conley arrived. Conley greeted the bartender and began emptying money out of a pin-ball machine.
21. Conley approached the bar to speak with the bartender regarding the division of the money taken from the machines. Conley recognized S.A. Donnelly. S.A. Donnelly initiated a conversation with Conley, saying hello and calling him as "John" or "Duffy."2
22. S.A. Donnelly reintroduced himself, reminding Conley that he was the FBI agent who had visited him. Conley indicated that he remembered him. S.A. Donnelly also introduced Patricia Moriarity as an FBI agent.
23. S.A. Donnelly asked Conley whether the pinball machines on the premises were Conley's machines and whether the video poker machines on the premises were Conley's machines. Conley answered that the machines were his machines.
24. S.A. Donnelly then invited Conley to sit down, have some coffee and talk. Conley replied that he was late for an errand and had to leave, but he was willing to return and talk.
25. S.A. Donnelly and S.A. Moriarity escorted Conley outside, and Conley left on his errand. The agents went to their car to wait and see if Conley would return.
26. The initial encounter at the Main Hotel lasted approximately five minutes.
27. Between fifteen and thirty minutes passed, but Conley in fact returned to talk to S.A. Donnelly. S.A. Donnelly, S.A. Moriarity and Conley reconvened in the bar of the Main Hotel.
28. S.A. Donnelly did not inform Conley whether they were speaking on the record or off the record.
29. S.A. Donnelly did not inform Conley whether Conley's statements would be used against him.
30. S.A. Donnelly did not inform Conley of his Miranda rights.
31. After Conley mentioned that he had ongoing legal problems implicating his association with the Pennsylvania Association of Video Operators ("PAVO"), S.A. Donnelly informed Conley that Conley was under no obligation to speak with him and informed Conley that the agents "did not want to hear anything about that, about his legal problems at all." (N.T. July 8, 1992, at 8).
32. S.A. Donnelly stated that he had observed patrons of the Main Hotel receiving pay-offs from the bartender. Conley replied that such a scenario was entirely possible.
33. S.A. Donnelly and Conley discussed PAVO.
34. When S.A. Donnelly opined that Conley was in violation of federal law, Conley inquired as to what federal law he was violating. S.A. Donnelly cited the Illegal Gambling Business statute, and Conley expressed ignorance of the provisions of that statute. S.A. Donnelly then told Conley that he should ask his counsel about the statute and asked Conley who represented him. At that point, Conley informed S.A. Donnelly that his counsel was William Difenderfer.3
35. S.A. Donnelly never told Conley that he had a right to consult counsel during the encounter. S.A. Donnelly never told Conley that he should discuss his conduct with counsel before making any incriminating statements.
36. S.A. Donnelly and Conley discussed Conley's recent arrest on state gambling charges and the preliminary hearing scheduled for November 3, 1989.
37. In response to a question regarding his conduct being illegal under state and federal law, Conley stated that he had no intention of leaving the video poker machine business. Conley stated that poker machine locations and his employees were dependant upon the business, and he had no intention of laying-off employees.
38. S.A. Donnelly broached the subject of the Arnold Coin Company, asking Conley if he had found any information. Conley admitted that he had done business with the company through an informal partnership, but Arnold Coin Co. sent a letter stating that it did not want to continue the relationship.
39. S.A. Donnelly asked if Conley had found out what locations Ninny Lagatutta had. Conley stated S.A. Donnelly probably knew as well as he did, because Conley's only way of knowing was his own involvement with video poker machines in town. Conley further stated that he knew Ninny Lagatutta and spoke with him about machines, but Conley did not have information about Ninny Lagatutta being involved in anything else.
40. S.A. Donnelly urged Conley to find out more about Ninny Lagatutta. Conley stated that if he heard anything more, he would let S.A. Donnelly know.
41. S.A. Donnelly asked Conley if he had any information on Sonny Ciancutti and the New Kensington area.
42. S.A. Donnelly asked if Sonny Ciancutti or Ninny Lagatutta had ever approached Conley seeking "tribute" or trying to "muscle" him. Conley stated that he had never been approached by any organized crime figure. He further stated a belief that the federal government had declared poker machines illegal because organized crime was mistakenly believed to have infiltrated the video poker machine business.
43. The encounter ended amicably, with Conley acknowledging that he had S.A. Donnelly's telephone number in the event that he had more information.
44. The...
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