US v. Gambino

• Decision Date: 19 April 1990
• Docket Number: No. 6th "S" 88 Cr. 919 (PKL).,6th "S" 88 Cr. 919 (PKL).
• Citation: 734 F. Supp. 1084
• Parties: UNITED STATES of America, v. Giuseppe GAMBINO, a/k/a "Joe," Rosario Naimo, a/k/a "Saro," a/k/a "Don Saro," a/k/a "Sarino," a/k/a "Sal," a/k/a "Casimiro DiLorenzo," a/k/a "Barry Beiner," Lorenzo Mannino, a/k/a "Lore," Francesco Inzerillo, a/k/a "Frank," a/k/a "Ciccio," Matteo Romano, Emanuele Adamita, a/k/a "Manuele," a/k/a "Mario DiLorenzo," a/k/a "Stephan Milazzo," Joseph Larosa, a/k/a "Little Joe," a/k/a "Cardillo," Salvatore Lobuglio, a/k/a "Toto," a/k/a "the engineer," Giuseppe D'Amico, a/k/a "Pino," a/k/a "Joe," Salvatore D'Amico, Francesco Cipriano, a/k/a "Frank," a/k/a "Ciccio," a/k/a "Francino," Salvatore Candela, a/k/a "Toto," Paolo D'Amico, Carmelo Guarnera, and John Doe, a/k/a "Sasha," Defendants.
• Court: U.S. District Court — Southern District of New York

734 F. Supp. 1084

UNITED STATES of America, v. Giuseppe GAMBINO, a/k/a "Joe," Rosario Naimo, a/k/a "Saro," a/k/a "Don Saro," a/k/a "Sarino," a/k/a "Sal," a/k/a "Casimiro DiLorenzo," a/k/a "Barry Beiner," Lorenzo Mannino, a/k/a "Lore," Francesco Inzerillo, a/k/a "Frank," a/k/a "Ciccio," Matteo Romano, Emanuele Adamita, a/k/a "Manuele," a/k/a "Mario DiLorenzo," a/k/a "Stephan Milazzo," Joseph Larosa, a/k/a "Little Joe," a/k/a "Cardillo," Salvatore Lobuglio, a/k/a "Toto," a/k/a "the engineer," Giuseppe D'Amico, a/k/a "Pino," a/k/a "Joe," Salvatore D'Amico, Francesco Cipriano, a/k/a "Frank," a/k/a "Ciccio," a/k/a "Francino," Salvatore Candela, a/k/a "Toto," Paolo D'Amico, Carmelo Guarnera, and John Doe, a/k/a "Sasha," Defendants.

No. 6th "S" 88 Cr. 919 (PKL).

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

April 19, 1990.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Otto G. Obermaier, U.S. Atty., S.D.N.Y., New York City (Andrew C. McCarthy, Frances M. Fragos, David N. Kelley, of counsel), for U.S.

Lionel R. Saporta, Edward Panzer, New York City, for defendant Gambino.

John M. Apicella, Charles Carnesi, Salvatore Russo, Brooklyn, N.Y., for defendant Mannino.

Ira J. Friedman, Brooklyn, N.Y., for defendant Inzerillo.

Philip R. Edelbaum, New York City, for defendant Romano.

Martin G. Fogelson, New York City, for defendant Adamita.

Golub & Dunn, New York City, Mitchell A. Golub, for defendant LaRosa.

Edward M. Kratt, New York City, for defendant LoBuglio.

Martin Geduldig, Hicksville, N.Y., for defendant Giuseppe D'Amico.

Thomas D. White, New York City, for defendant Cipriano.

Culleton & Marinaccio, Bronx, N.Y., James Culleton, for defendant Candela.

Brown, Berne, & Serra, Bronx, N.Y., Wesley M. Serra, for defendant Guarnera.

ORDER AND OPINION

LEISURE, District Judge:

Defendant Giuseppe Gambino has filed a motion to suppress evidence in the form of conversations recorded by the federal government using electronic eavesdropping devices. Gambino is joined in his motion by all other defendants before the Court. Gambino claims that the government has violated Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. ? 2510 et seq. ("Title III"), and the fourth amendment to the U.S. Constitution. Gambino argues that the conversations recorded by the government should be suppressed due to these statutory and constitutional violations. Defendants LoBuglio, Inzerillo, Cipriano, Guarnera, and Candela have filed motions to suppress evidence as well, based on Title III and the fourth amendment to the U.S. Constitution (the "fourth amendment").

BACKGROUND

On December 14, 1989, the grand jury returned the sixth superseding indictment (the "indictment") against the defendants in this case.¹ The evidence presented to the grand jury was the result of a long-term investigation by the federal government into an international organization which has come to be known variously as "the mafia" or "la cosa nostra." According to the indictment filed in this case, this organization is responsible for the importation and distribution of large quantities of narcotics in violation of federal law. To supplement its income from the narcotics trade, the organization also allegedly participates in gambling, loansharking, and extortion. The indictment charges that murder and other acts of violence are carried out by members of the organization to facilitate its operations.

As part of its investigation into this alleged criminal organization, the government petitioned the Honorable Mark A. Costantino, United States District Judge for the Eastern District of New York, for an order pursuant to 18 U.S.C. ? 2518 authorizing the electronic interception of oral communications at the Caffe Giardino, an alleged headquarters for the conspiracy's leadership. On March 9, 1988, two government lawyers² filed an application with Judge Costantino supported by a 93-page affidavit sworn to by John G. Nemec, Jr., a Special Agent of the Federal Bureau of Investigation ("FBI" or "F.B.I.") who was closely involved in the investigation. (G.Ex. 1 and 2).³ Based on the application and the supporting affidavit, Judge Costantino issued an order dated March 9 (the "March 9 order") which stated that probable cause had been established to believe, inter alia, that Giuseppe Gambino, Lorenzo Mannino, and others were engaging in illegal narcotics transactions, that interception of oral communications at the Caffe Giardino would reveal evidence of these crimes, and that normal investigative techniques would be unlikely to succeed if attempted. (G.Ex. 3). The March 9 order also authorized Special Agents of the F.B.I. to enter the Caffe Giardino covertly and surreptitiously to plant the eavesdropping devices. (G.Ex. 3, at 5).

As required by Title III, the government applied for extensions of the March 9 order every thirty days through mid-November 1988. Each extension application was supported by the affidavit of Special Agent Nemec, who supplemented his initial sworn statements with evidence gained from the electronic eavesdropping. Each application was granted by Judge Costantino. In the extension order dated June 16, 1988, Judge Costantino stated that probable cause had been established to believe that Giuseppe Gambino and others were engaged in extortion in violation of 18 U.S.C. ?? 892, 893, 894, and 371. (G.Ex. 12, at 2-3). In the extension order dated November 18, 1988, Judge Costantino added that probable cause had been established to believe that Gambino, Francesco Inzerillo, Lorenzo Mannino, Matteo Romano, Giuseppe D'Amico, and others were managing an illegal gambling enterprise in violation of 18 U.S.C. ? 1955. (G.Ex. 27, at 2-3). On December 1, 1988, the defendants were arrested, and no further extensions of the electronic eavesdropping order were sought.

DISCUSSION

I. GIUSEPPE GAMBINO'S MOTIONS

A. Installation of the Caffe Giardino Bugs

Gambino alleges that the participation of government confidential informant William Kane in the installation of the Caffe Giardino bugs was unauthorized and illegal, and that therefore the fruits of those bugs ?€” the hundreds of hours of recorded conversations ?€”should be suppressed. Gambino claims that Kane's entries into the Caffe, and his placement and maintenance of the surveillance devices, violated Title III, the fourth amendment, and the explicit requirements of Judge Costantino's March 9 order. Each of these arguments will be considered in turn.

Gambino relies on a series of five articles written in a New Jersey newspaper, the Courier-Post, for factual information. (G.Ex. 57).⁴ Gambino points to quotations in the articles attributed to Kane stating that Kane assisted two FBI technicians in entering the Caffe Giardino as early as September 1987 to install bugs, several months before the government applied to Judge Costantino for an authorization order pursuant to Title III. The articles also report that Kane entered the Caffe Giardino alone on several occasions to activate or repair listening devices. Gambino claims that these alleged improprieties mandate suppression of the tapes.

The Court requested that the government produce Kane for live testimony concerning, inter alia, his activities in installing, activating, maintaining, or replacing electronic eavesdropping devices inside the Caffe Giardino. The Court's factual inquiry focused on whether Kane's role in the surveillance process in any way violated the requirements of Title III or the fourth amendment.

Kane testified that on multiple occasions he had activated and effected minor repairs on electronic surveillance equipment inside the Caffe Giardino under the supervision of FBI technicians, but not in the presence of government agents. (Tr. 22-24, 26).⁵ Kane also testified that he had replaced entire units which were malfunctioning. (Tr. 24-25). Kane stated that he was in general unfamiliar with the use of surveillance devices, had followed the instructions of FBI technicians closely, and had not taken part in any of the actual interceptions of conversations inside the Caffe Giardino. (Tr. 24, 27-28). The question for the Court is whether any of Kane's actions violate Title III or the fourth amendment.

1. Statutory Argument

Gambino argues that certain provisions of Title III indicate that only the federal government, or those acting under contract with or supervision of the government, may be authorized to intercept electronically oral communications. See 18 U.S.C. ?? 2516(1), 2518(5).⁶ Gambino's contentions based on these provisions in Title III are contradicted by the definition of "interception" provided by Congress in the context of Title III. "Interception," as defined at 18 U.S.C. ? 2510(4), "means the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device." See United States v. New York Telephone Co., 434 U.S. 159, 166-67, 98 S.Ct. 364, 369-70, 54 L.Ed.2d 376 (1978) (in holding that pen registers are not "interceptions" under Title III, the Court stressed that an "interception" must relate to an "aural acquisition" of the "contents" of the communications); United States v. Turk, 526 F.2d 654, 657-58 (5th Cir.), cert. denied, 429 U.S. 823, 97 S.Ct. 74, 50 L.Ed.2d 84 (1976). The provisions of Title III cited by Gambino are properly read as only relating to the actual interception of the oral communications, and are not relevant to how the listening devices are installed.⁷

Gambino argues in response that Title III is a broad-based attempt by Congress to regulate all aspects of electronic surveillance to insure that the privacy interests of the U.S. citizenry are protected. See Dalia v. United States, 441 U.S. 238, 249-54, 99 S.Ct. 1682, 1689-92, 60 L.Ed.2d 177 (1979); United States v. Villegas, 899 F.2d 1324 (2d Cir.1990).⁸ Gambino claims that both the actual interception of oral communications and the installation...