US v. Cucci

• Citation: 892 F. Supp. 775
• Decision Date: 18 May 1995
• Docket Number: Crim. A. No. 94-82-R.
• Parties: UNITED STATES of America, v. Vittorio Giuseppe CUCCI also known as "Victor" and Janet Marie Cucci.
• Court: U.S. District Court — Western District of Virginia

892 F. Supp. 775

UNITED STATES of America, v. Vittorio Giuseppe CUCCI also known as "Victor" and Janet Marie Cucci.

Crim. A. No. 94-82-R.

United States District Court, W.D. Virginia, Roanoke Division.

May 18, 1995.

COPYRIGHT MATERIAL OMITTED

John Saul Edwards, Roanoke, VA, Robert B. Allen, Charleston, WV, W. Mark Burnette, King, Allen & Arnold, Charleston, WV, and Thomas Joel Hall, Thomas Alan Leggette, and Neil Vincent Birkhoff, Woods, Rogers & Hazlegrove, P.L.C., Roanoke, VA, for defendants.

Hunter Smith, Asst. U.S. Atty., and Donald Stennett, U.S. Attorney's Office, Charleston, WV, for the U.S.

MEMORANDUM OPINION

TURK, District Judge.

On June 16, 1994, a Roanoke federal grand jury returned an eleven count indictment charging the Defendants, Victor and Janet Cucci, with various criminal conduct. These charges included: four counts of income tax evasion, 26 U.S.C. § 7201; four counts of aiding and assisting in the filing of false income tax returns, 26 U.S.C. § 7206(2); two counts of structuring financial transactions to evade currency reporting requirements, 31 U.S.C. §§ 5322(a), 5324(3) and 31 C.F.R. § 103 (1994); and one count of conspiracy relating to the structuring charges, 18 U.S.C. § 371.

The matter is presently before the court on the Defendants' pre-trial motions to suppress evidence. FED.R.CRIM.P. 12(b)(3) and 41(f). The Defendants contend that: (1) the warrantless arrest of Victor Cucci on the evening of July 25, 1991 was presumptively unreasonable and in violation of the Fourth Amendment; (2) the subsequent searches of Cucci's residence, cars, cabin, and restaurant were invalid because they were based on consent that was both coerced and tainted by the Fourth Amendment violation; and (3) the searches that were conducted were beyond the scope of any consent that may have been given. The Defendants ask the court to suppress all evidence seized by the police on the night of Cucci's arrest and the morning thereafter.

The government has filed a brief in opposition, arguing that the warrantless arrest was justified based upon exigent circumstances present at the time it was conducted. In the alternative, even if exigency did not exist and the arrest was unlawful, the government believes that the evidence is still admissible because Cucci voluntarily consented to the searches after he had been removed from his home. Therefore, the government reasons, any Fourth Amendment violation that may have initially occurred was attenuated by intervening circumstances and the evidence cannot be viewed as an exploitation of illegal police conduct.

An evidentiary hearing was held, on November 29, 30 and December 1, 1994, to create a record from which the merit of the Defendants' motions could be ascertained. During that hearing, exhaustive testimony was proffered by twenty-seven witnesses. Thereafter, on March 16, 1995, arguments on the suppression motions were presented to the court. The matter was taken under advisement and is now ripe for consideration.

Having carefully reviewed the parties' pleadings, the record, all of the evidentiary testimony, and the relevant case law, the court finds that it must grant the Defendants' motions. The government has failed to show by a preponderance of the evidence that the warrantless arrest of Victor Cucci was justified by exigent circumstances. In addition, the court finds that Cucci's consent to the searches was not given voluntarily. Moreover, even if it could be said that exigency existed and Cucci's consent was the product of free and unconstrained choice, the court believes the scope of the searches that were conducted was overly broad.

Factual Background¹

Beginning in the late 1980s, the Virginia State Police, in conjunction with the Internal Revenue Service, ("IRS"), and the United States Customs Service, began investigating Victor Cucci's involvement in drug trafficking and money laundering. Early in 1991, after several years of intermittent surveillance, these agencies were contacted by the Charleston, West Virginia office of the Drug Enforcement Administration, ("DEA"). Thereafter, on May 6, 1991, a formal meeting was conducted in Roanoke, Virginia. At the conclusion of that meeting, the DEA decided that a joint undercover operation should be launched.

The operation entailed using an informant, Robert Seidman, to make controlled buys of cocaine from Cucci.² The strategy was to have the informant initially buy a single kilogram of cocaine and set up a long term distribution plan. Once Cucci trusted Seidman, a larger order for multiple kilos would be placed. In so doing, the government was confident it could expose Cucci's supplier and force him to come to Covington. During this larger transaction, both Cucci and his supplier would be arrested simultaneously.³ Along with the drug purchase, the operation also called for a money laundering sting. This would require purchasing automobiles from Cucci's dealership with cash that was represented to be the proceeds from previous drug transactions. It would be emphasized to Cucci that the cash should remain anonymous and that it could not be reported to the IRS.

The undercover operation came to fruition on July 25, 1991. Prior to that day, Seidman had negotiated to purchase one kilogram of cocaine and a car from Cucci. The prices of the cocaine and the automobile were set at thirty thousand dollars ($30,000.00) and fifteen thousand dollars ($15,000.00), respectively. The state law enforcement officials involved in the operation agreed to front the "buy money" for these transactions.⁴ They also agreed that, if the situation required it, the purchase money would be allowed "to walk."

At 11:00 a.m., Cucci phoned Seidman and informed him that the cocaine had arrived in Covington and that he wanted to make the sale that day. Seidman contacted the government agents and they set up a surveillance team. In addition, a makeshift headquarters was established in an area known as Hart's Run in Greenbrier National Forest, West Virginia.⁵ Seidman was wired with electronic transmitter and supplied with approximately forty-five thousand dollars, ($45,000.00). In addition, officers were delegated surveillance assignments by the DEA Resident Agent in Charge, Allen Michael Keaney, ("Keaney").

About 4:00 p.m., Seidman, accompanied by DEA Agent Austin Burke, ("Burke"), arrived at Cucci's car dealership. At the same time, a police surveillance van was driven to a parking lot next to the dealership in order to observe the transaction. Moments later, Cucci met with Seidman and Burke and informed them that he had, not one, but two kilos of cocaine that he wished to sell. This presented a dilemma for the investigators because they had already decided that additional funds could not be raised for the operation. Nevertheless, despite the fact that he did not have a sufficient amount of cash with him, Seidman agreed to buy the second kilo. Cucci, realizing that Seidman was short of funds, left the dealership momentarily and returned with fifteen thousand dollars ($15,000.00) of his own money. He gave the money to Seidman so that the transaction could be completed and Seidman agreed to repay Cucci the following day by 3:00 p.m.

After the financial aspects of transaction had been addressed, Cucci asked Seidman if he would travel to Cucci's cabin to complete the deal.⁶ Seidman agreed and, leaving Agent Burke at the dealership, drove in a separate car to the cabin. They arrived at approximately 5:13 p.m. Meanwhile, the police surveillance van followed them and stopped on a side street close enough to continue to monitor the exchange.

When they arrived at the cabin, two things of import occurred. First, Seidman quickly made it known to the police surveillance team that an assault rifle was present. Second, a third individual appeared and was spotted putting the cocaine into the back of Seidman's car. This was the first time that investigators learned that a firearm was present and this information was immediately disseminated to the other officers working on the operation. Furthermore, they began to believe that the unknown third party might be Cucci's supplier, Joseph Covello.⁷

After twenty to thirty minutes at the cabin, Seidman returned to the car dealership and rejoined Agent Burke. The two waited for a short period of time expecting Cucci to return. When Cucci failed to reappear, Burke and Seidman departed the dealership and headed to the operation's pre-arranged headquarters at Hart's Run. About this same time, Virginia Police Special Agent Douglas W. Orebaugh, ("Orebaugh"), who was part of the surveillance team monitoring the cabin, met with Agent in Charge Keaney on a side street behind the Cucci restaurant and informed him about what had transpired. Although pleased with their good fortune, Keaney told Orebaugh that a more positive identification of Covello was needed before a decision to arrest could be made. Pursuant to this conversation, officers were dispatched to the Cucci's restaurant to confirm Covello's identity. This was accomplished at approximately 6:00 p.m., when Orebaugh successfully took photos of Cucci and Covello talking to each other at the back door of the pizzeria.

Between 6:00 and 6:30 p.m., all of the agent's involved in the undercover operation returned to Hart's Run for a debriefing. During their discussions, the presence of the AK-47 in the cabin was confirmed. In addition, they were now convinced that Covello had been the third individual at the cabin. It was also during this period that the two kilos of cocaine were examined. The officers noted that one of the two kilos had been cut open and resealed.⁸ This suggested that some of the cocaine might have been "pinched" by one of the parties to the transaction.

After their initial discussions, Agent Burke phoned the Assistant United States Attorney assigned to the case, Hunter P. Smith, Jr. Based on what Burke told him of the day's events, Smith...