US v. Falsetti

• Decision Date: 29 November 1988
• Docket Number: No. CR-87-211C.,CR-87-211C.
• Parties: UNITED STATES of America, v. John FALSETTI and Timothy Soda, Defendants.
• Court: U.S. District Court — Western District of New York

721 F. Supp. 452

UNITED STATES of America, v. John FALSETTI and Timothy Soda, Defendants.

No. CR-87-211C.

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

November 29, 1988.

Dennis C. Vacco, U.S. Atty. (Joseph M. Guerra, III, Asst. U.S. Atty., of counsel), Buffalo, N.Y., for the U.S.

Lipsitz, Green, Fahringer, Roll, Schuller & James (Herbert L. Greenman, of counsel), Buffalo, N.Y., for defendant, John Falsetti.

Daniel J. Weinstein, Buffalo, N.Y., for defendant, Timothy Soda.

INTRODUCTION

CURTIN, District Judge.

The defendants have moved to suppress evidence obtained by the government through the use of a court-ordered wiretap and pursuant to the execution of a search warrant at defendant John Falsetti's residence.¹

FACTS

The wiretap at issue in the present case was installed during the course of a joint investigation involving state and federal law enforcement officials.² On October 27, 1987, Judge Charles Hannigan of Niagara County Court issued an order authorizing the installation of a wiretap on a phone in Falsetti's home pursuant to Article 700 of the New York Criminal Procedure Law. In support of its application, the government had submitted the affidavits of Peter Broderick, the District Attorney of Niagara County, see Item # 15, Exhibit B, and Craig Harmon, an investigator with the Niagara County Sheriff's Department who was assigned to the Niagara County Drug Task Force. See id., Exhibits C and D.

Harmon's affidavits enumerated various grounds in support of the contention that Falsetti was engaged in a conspiracy to distribute relatively large quantities of hashish and marijuana.³ According to Harmon, a reliable confidential informant had told the investigators that he knew a man named Thomas Corsalini who was involved in the distribution of various drugs, including hashish and marijuana, and that Corsalini's source for the drugs was a man named "John" who lived in Lockport, New York. Item # 15, Exhibit D at ¶¶ 8, 9.⁴ The informant had witnessed Corsalini place and receive numerous telephone calls to and from John, and during these conversations Corsalini and John would discuss, sometimes in code, the transfer of drugs and cash. Through use of a pen register and examination of telephone company records, the investigators were able to confirm that numerous calls had in fact been made between a phone in Falsetti's home in Lockport and a phone in Corsalini's home during the relevant time period. Id. at ¶¶ 9, 17, 26. In addition, the informant stated that Corsalini had called John while Corsalini was living with the informant, and the informant's telephone bill confirmed that a call had been placed to Falsetti's residence. Id. at ¶ 36.

The informant told the investigators that he had accompanied Corsalini on several trips to pick up drugs from John. During these trips, Corsalini would drop off the informant at a convenience store or bar, and return approximately ten minutes later with one or more bales of marijuana weighing twenty to twenty-five pounds each and at least one pound of hashish. Corsalini told the informant that he received the drugs from John on consignment and would pay him with proceeds from sales of the drugs.⁵ The informant would then purchase and resell some of the drugs, and would also help Corsalini sell the balance. The informant estimated that Corsalini had purchased from John approximately two hundred pounds of marijuana and eight pounds of hashish during a period of about five months in 1987. Id. at ¶¶ 10, 11, 13.

Corsalini told the informant that John worked for a much larger organization based in Arizona and Mexico,⁶ and that John, who frequently travelled to Arizona, had planeloads of marijuana and hashish flown into the Niagara County area several times per month. Corsalini also told the informant that John had bribed a United States Customs Official and a New York State Police Investigator to assist him in avoiding arrest: the customs official helped aircraft smuggling drugs from Mexico avoid radar detection, and the investigator screened potential customers to determine whether they were police informants or had pending criminal charges. Id. at ¶¶ 12, 13, 31.

The informant gave several indications that his information was reliable. For example, in September, 1987, the informant told the Drug Enforcement Administration ("DEA") that Corsalini had been in an automobile accident and that the police had towed his car before he could remove three pounds of marijuana and a gun from inside the vehicle. The DEA subsequently contacted the Buffalo Police Department, which then recovered the marijuana and a stolen rifle from the car. Id. at ¶ 14.⁷ A warrant was subsequently issued for Corsalini's arrest, and, according to the informant, Corsalini fled to Florida. Approximately one month after the seizure from Corsalini's car, the informant advised the DEA that Corsalini was returning to Buffalo on a commercial flight and would be armed. When the police were notified, they responded to the airport and arrested Corsalini on the outstanding charges. They also recovered a weapon from him. Id. at ¶¶ 15, 16.⁸

In his affidavit, Harmon also asserted that Falsetti had been arrested at least three times and had at least one narcotics-related conviction, and that at the time of one of the arrests over fourteen thousand dollars and small amounts of cocaine and marijuana were recovered from a vehicle in which Falsetti was a passenger. Id. at ¶¶ 18, 19, 21. Harmon also stated that he had learned that other reliable informants had advised other law enforcement officials that they knew Falsetti to be involved in the distribution of cocaine and marijuana. Id. at ¶¶ 23, 25.⁹

In support of the wiretap application, Harmon also maintained that, based on his experience, normal investigative techniques would prove either futile or too dangerous for several reasons.

First, he stated that drug traffickers normally do not keep permanent records of their trade, and that, in any event, even if such records were obtainable they would likely be coded and, consequently, useless as an investigative tool. Item # 15, Exhibit C at ¶ 1(a). Second, he claimed that physical surveillance would prove fruitless because of the secretive nature of the drug trafficking being investigated, and because the Niagara County Drug Task Force, consisting of only five investigators, was too small to prevent detection by the targets of any surveillance. Id. at ¶ 1(b). Third, he claimed that the use of undercover agents was impossible, although he did not explain why. Id. at ¶ 1(c). Fourth, he stated that the investigators did not have any informants who knew Falsetti. Id. at ¶ 1(d). Fifth, Harmon asserted that sufficient evidence to prove the nature and scope of Falsetti's organization could only be obtained through use of a wiretap, although he again did not explain why. Id. at ¶ 2.

Through use of the wiretap, the investigators determined that defendant Timothy Soda would be delivering a shipment of marijuana for Falsetti to the home of a man named Richard McNatty in Colden, New York, on November 23, 1987. Item # 2, Affidavit of Gregory McCoy at ¶¶ 3, 4; Item # 15, Exhibit G, Affidavit of Craig Harmon at ¶¶ 4-6. At approximately 5:45 p.m. on November 23, Soda was observed arriving at McNatty's house in a station wagon, and approximately thirty minutes later Falsetti was observed arriving in another car that he parked next to Soda's car. Falsetti then removed a bag from the trunk of his car and went inside the house. At approximately 8:00 p.m., Soda and Falsetti came out of the house and began putting bags into the trunk of Falsetti's car. Soda and Falsetti were then arrested; McNatty, who was also outside at the time, was also arrested. Agents then entered McNatty's house and recovered bags containing approximately fifty-seven pounds of marijuana. The agents also recovered a digital scale and two bags containing a total of approximately thirty-one pounds of marijuana from Falsetti's car, and bags containing a total of seventy-two pounds of marijuana from Soda's car. Item # 2, Affidavit of Gregory McCoy at ¶¶ 7-11.

Later that night, the investigators executed a search warrant authorized by Judge Hannigan for Falsetti's home. Although it is unclear from the parties' papers exactly what was recovered, it appears that the agents found records pertaining to Falsetti's alleged drug-distribution ring. See id. at ¶ 12.

DISCUSSION

A) The Wiretap

i. Minimization

The defendants have requested a hearing to determine whether the government properly minimized intercepted conversations. See Item # 15 at ¶¶ 6(f), 7-8. The government has responded that the conversations were properly minimized, and that a hearing is neither required nor necessary. See Item # 18 at 2-9.

Since the investigation in the present case included state officials acting pursuant to a state wiretap statute, and since the minimization requirement contained in the New York statute is intended to protect a person's right to privacy, see, e.g., People v. Floyd, 41 N.Y.2d 245, 249, 392 N.Y.S.2d 257, 360 N.E.2d 935 (1976), New York law will control to the extent that it is more stringent than federal law governing minimization. See United States v. Lilla, 699 F.2d 99, 102 n. 3 (2d Cir.1983); United States v. Sotomayor, 592 F.2d 1219, 1225 (2d Cir.), cert. denied, 442 U.S. 919, 99 S.Ct. 2842, 61 L.Ed.2d 286 (1979). See also United States v. Lilla, 534 F.Supp. 1247, 1253-54 (N.D.N.Y.1982), rev'd on other grounds, 699 F.2d 99 (2d Cir.1983). Compare United States v. Eyerman, 660 F.Supp. 775, 778-80 (S.D.N.Y. 1987) (federal law controls where investigation of federal crime through use of wiretap is conducted by federal agents without any involvement of state authorities); People v. Griminger, 71 N.Y.2d 635, 529 N.Y. S.2d 55, 524 N.E.2d 409 (1988) (state law controls where fruits of search conducted pursuant to warrant issued by federal magistrate are used in...