US v. Ferrara

Decision Date27 June 1991
Docket NumberCrim. No. 89-289-WF.
Citation771 F. Supp. 1266
PartiesUNITED STATES of America v. Vincent M. FERRARA, et al.
CourtU.S. District Court — District of Massachusetts

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Jeffrey Auerhahn, Asst. U.S. Atty., Boston, Mass., for U.S.

James J. Cipoletta, Revere, Mass., Elliot M. Weinstein, Boston, Mass., Henry D. Katz, Chelsea, Mass., Anthony M. Cardinale, Bernard Grossberg, Boston, Mass., John F. Cicilline, Providence, R.I., Martin G. Weinberg, Boston, Mass., Oscar Goodman, Las Vegas, Nev., Robert L. Sheketoff, Joseph J. Balliro, Boston, Mass., for defendants.

MEMORANDUM AND ORDER

WOLF, District Judge.

I. Summary

The seven defendants1 in this case are charged with being members of the Patriarca Family of La Cosa Nostra ("LCN" or "Mafia"). It is alleged that the Patriarca Family is a criminal organization as defined in the Racketeer Influenced and Corrupt Organization ("RICO") statute, 18 U.S.C. § 1961 et seq. (1988). The Superceding Indictment charges that the Patriarca Family is a highly secret enterprise whose illegal activities have included specified murders, drug trafficking, extortion, obstruction of justice, and gambling, among other things.

Significant evidence of the existence of the illegal enterprise alleged in this case was obtained by the government when — apparently for the first time anywhere — it electronically intercepted and recorded a meeting on October 29, 1989, at 34 Guild Street, Medford, Massachusetts in which new members of the LCN were inducted. As part of the ceremony, the new members: swore their life-long, paramount loyalty to the LCN and acknowledged that only death would end their membership; promised not to divulge the existence or secrets of the LCN; and undertook to kill informants, including their blood relatives, if instructed to do so.

The electronic surveillance at 34 Guild Street was conducted pursuant to a warrant issued on the evening of October 27, 1989, (the "Order" or the "Warrant"), by Judge David Nelson of the United States District Court for the District of Massachusetts. See Appendix 1 hereto. The Warrant was issued on the basis of an application filed by then Special Attorney Diane Kottmyer (the "Application") and a supporting affidavit of Special Agent Walter J. Steffens, Jr. (the "Steffens Aff.") of the Federal Bureau of Investigation ("FBI"). The Order authorized roving electronic surveillance to intercept certain criminal communications involving Joseph Russo, Vincent Ferrara, or Robert Carrozza.

The Warrant was issued pursuant to 18 U.S.C. § 2518(11)(a), a relatively new provision of the federal statute authorizing the interception of communications. See The Wire and Electronic Communications Interception and Interception of Oral Communications Act, 18 U.S.C. § 2510 et seq. (1988) ("Title III").2 Title III was enacted in 1968, after the Supreme Court, reversing its prior precedent, explicitly held that the protections of the Fourth Amendment applied to the interception of wire and oral communications. See section III.3 infra. The statute was intended to codify the requirements of the Fourth Amendment as it was then understood to apply to the interception of communications, to supplement the Fourth Amendment's protections with solely statutory safeguards and procedures, and to facilitate the interception of criminal conversations in appropriate investigations — particularly including investigations of organized crime.

The Fourth Amendment requires that searches and seizures be reasonable and establishes certain requirements for the issuance of warrants. Among these is the requirement that any warrant "particularly describe the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. As originally enacted, Title III implemented the particularity clauses of the Fourth Amendment by requiring: (1) that each application concerning electronic surveillance include "a particular description of ... the place where the communication is to be intercepted," 18 U.S.C. § 2518(1)(b)(ii), and (2) that the judge find that "the place where, ... communications are to be intercepted is being used, or is about to be used," in the commission of a specified offense, § 2518(3)(d).

In enacting Title III, Congress expressed the belief that electronic surveillance was indispensable to investigating and prosecuting organized crime. Subsequently, many cases in Massachusetts and elsewhere showed this conviction to be correct. As the ability of the government to intercept criminal conversations became manifest, however, sophisticated criminals began structuring their communications to frustrate efforts to intercept them.

In recognition of this, Title III was amended in 1986 to add "roving intercept" and "roving wiretap" provisions, 18 U.S.C. § 2518(11) (1988). With regard to the roving intercept provision at issue in the instant case, subsection 11 provides that the usual particularity requirements of Title III, § 2518(1)(b)(ii) and (3)(d), do not apply if a judge finds such specification is not practical, based upon an application by the government containing:

a full and complete statement as to why such specification is not practical and identifying the person committing the offense and whose communications are to be intercepted.

§ 2518(11)(a)(ii).

In essence, the roving intercept provision replaces the usual practice that the place to be searched be identified in a warrant by an address with a description of that place as the location at which an identified person is engaging in identified criminal conversation. Thus, a roving intercept order gives executing officers less specific direction, and more discretion, concerning the place to be searched than a conventional warrant. Section 2518(11)(a) reflects the contemporary view of Congress and the President that this increased discretion is constitutionally permissible and appropriate when it is impractical for a warrant to define the place to be searched in conventional terms, particularly if that impracticality is caused by the deliberate efforts of suspects to frustrate surveillance.

At the outset of this case the defendants moved to suppress the evidence intercepted at 34 Guild Street on the ground that the roving intercept provision of Title III violates the particularity clause of the Fourth Amendment and is, therefore, unconstitutional. The government opposed this motion, which presents issues which have not been decided previously by any court.

The court began oral argument on defendants' motion on February 22, 1991. At that time neither the defendants nor the court were aware that the government had, prior to obtaining the Order in this case, developed information concerning 34 Guild Street as the possible site of an imminent Mafia induction ceremony, but did not include that information in the Application or Steffens' Affidavit furnished to Judge Nelson. In response to an invitation by the court to clarify what, if anything, it knew about 34 Guild Street before issuance of the Warrant, the government filed several affidavits.

Those affidavits indicated that on October 27, 1989, the government's investigation developed several pieces of information indicating that 34 Guild Street would be used two days later for a Mafia induction ceremony. Thus, by that afternoon, there was evidence sufficient to provide probable cause to believe it would soon be possible and proper to intercept conversations at 34 Guild Street. At the same time the government also had formidable reasons to doubt that they had identified the true location of an imminent Mafia induction ceremony and considerable evidence that the proposed targets of the proposed roving Order were still attempting to thwart surveillance.

Disclosure of the foregoing facts concerning 34 Guild Street caused defendants to supplement their motion to suppress to claim additional statutory as well as constitutional grounds for exclusion of the evidence at issue. Oral arguments on the continually emerging legal issues were held on February 22, 1991, February 26, 1991, February 27, 1991, March 6, 1991, March 14, 1991 and March 25, 1991. On March 25, 1991, defense counsel were permitted to interrogate Kottmyer on the reasons why she did not on October 27, 1989 revise or supplement the government's submission to provide Judge Nelson with the information the FBI had recently developed regarding 34 Guild Street.

Upon consideration of the evidence, the parties' voluminous memoranda, and analysis of the applicable law, the court now concludes the motion to suppress must be denied. In view of the complexity of the issues presented, and of their importance to all parties, the reasons for this decision are explained in detail in this Memorandum. Briefly summarized, these reasons are as follows.

The constitutionality of the roving intercept provisions now at issue must be analyzed as they were implemented by the Order issued by Judge Nelson. See section III.1 infra.

In addition, the question whether § 2518(11), as applied in this case, violates the Fourth Amendment requires consideration of the origins of the Amendment and its evolution, particularly as it has been construed concerning electronic surveillance. See section III.2 infra. The Fourth Amendment was a direct response to the general warrants and writs of assistance which gave colonial officials virtually boundless discretion as to where they could search and who or what they could seize. The Amendment was originally enacted to protect individuals and their tangible property from unreasonable searches and seizures.

This protection against unreasonable searches and seizures was afforded by the operation of a series of related provisions of the Fourth Amendment. These provisions include the requirements that, absent special circumstances, searches be conducted pursuant to warrants issued by neutral magistrates, based upon...

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