US v. Harloff, 91-CR-205T.

• Citation: 807 F. Supp. 270
• Decision Date: 12 June 1992
• Docket Number: No. 91-CR-205T.,91-CR-205T.
• Parties: UNITED STATES of America, v. Scott David HARLOFF, Gregory Robin Raggi, Michael David Mazzeo, Thomas William Alessi, James William O'Brien, and Gordon Frederick Urlacher, Defendants.
• Court: U.S. District Court — Western District of New York

807 F. Supp. 270

UNITED STATES of America, v. Scott David HARLOFF, Gregory Robin Raggi, Michael David Mazzeo, Thomas William Alessi, James William O'Brien, and Gordon Frederick Urlacher, Defendants.

No. 91-CR-205T.

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

June 12, 1992.

Michael J. Gennaco, U.S. Dept. of Justice, Civil Rights Div., Washington, DC, for U.S.

Ronald S. Carlisi, John R. Parrinello, Karl F. Salzer, John F. Speranza, Anthony F. Leonardo, David Rothenberg, Rochester, NY, for defendants.

ORDER^*

TELESCA, Chief Judge.

A 19-count Indictment, filed August 29, 1991, charges the defendants, individually or collectively, with violations of 18 U.S.C. § 241 (conspiracy to violate civil rights), 18 U.S.C. § 242 (deprivation of civil rights under color of law), 18 U.S.C. § 371 (conspiracy to commit an offense or offenses against the United States), 18 U.S.C. § 666 (theft or embezzlement from certain federally funded programs), and 18 U.S.C. § 924(c) (use of a firearm in commission of a violent crime). This action was referred September 3, 1991 to United States Magistrate Judge Kenneth R. Fisher pursuant to 28 U.S.C. § 636(b)(1)(A)-(B). Defendants' various omnibus motions are the subject of a Decision and Order and Report and Recommendation filed April 10, 1992 and a separate Report and Recommendation filed April 23, 1992.

As to Magistrate Judge Fisher's Report and Recommendation filed April 10, 1992, defendants Harloff, Raggi, Mazzeo, and Alessi object to Magistrate Judge Fisher's recommendation that the Court deny, without a hearing, defendants' motion to dismiss the indictment which is based on DR 7-104(A)(1), defendants' Fifth and Sixth Amendment rights, and U.S. v. Hammad, 858 F.2d 834 (2d Cir.1988).

As to Magistrate Judge Fisher's Report and Recommendation filed April 23, 1992, all defendants object to Magistrate Judge Fisher's recommendation that the Court deny, without a hearing, defendants' motion to dismiss the indictment for improper use of immunized testimony (a "Kastigar" motion).

I have carefully reviewed Magistrate Judge Fisher's Decision and Order and Reports and Recommendations, as well as the defendants' objections thereto, and the Government's responsive submissions. Initially, I note that defendants' objections consistently fail to comply with the specificity required of such objections by 28 U.S.C. § 636(C) and Local Rule 30(a). Notwithstanding those deficiencies, I have considered defendants' objections, and find them to be without merit.

Insofar as defendants object to Magistrate Judge Fisher's Report and Recommendation, dated April 24, 1992, to deny a pre-trial Kastigar hearing, I would only reemphasize Magistrate Judge Fisher's determination that the Government has met its burden of showing an independent source for any potentially relevant evidence "tainted" by an alleged misuse of defendants' immunized testimony before the Professional Standards Section of the Rochester Police Department. See U.S. v. Rivieccio, 919 F.2d 812, 817 (2d Cir.1990). The defendants' allegations simply do not warrant such a hearing prior to trial; neither justice nor Fed.R.Crim.P. 16 requires it.

Wherefore, as to Magistrate Judge Fisher's Report and Recommendation filed April 10, 1992: his recommendation that the motion of defendants Harloff, Raggi, Mazzeo, and Alessi to dismiss the Indictment based on DR 7-104(A)(1), defendants' Fifth and Sixth Amendment rights, and U.S. v. Hammad, is adopted, and such motion is accordingly denied. Magistrate Judge Fisher's Report and Recommendation, filed April 23, 1992, that defendants' motion to dismiss the Indictment for improper use of immunized testimony pursuant to Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972) be denied is adopted, and the motion is accordingly denied with leave to renew, if appropriate, at the completion of the trial.

ALL OF THE ABOVE IS SO ORDERED.

DECISION AND ORDER

REPORT AND RECOMMENDATION

ON MOTIONS TO SUPPRESS

AND FOR DISMISSAL^**

FISHER, United States Magistrate Judge.

Following defendants' indictment for several civil rights and other violations allegedly committed by them in their capacity as police officers investigating narcotics crimes in the City of Rochester, defendants filed omnibus motions. The government responded, and the matter came on for oral argument after which several post-argument submissions were made. The following is my Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) that their motions for suppression of evidence be denied without a hearing. Defendants' motion for dismissal of the indictment on the ground of improper use of immunized testimony given to the Professional Standards Section of the Rochester Police Department is treated in a separate Report and Recommendation to be filed later. These motions were referred to me by Chief Judge Michael A. Telesca pursuant to 28 U.S.C. § 636.

* * *

VIII. THE MORRIS TAPES AND THE HAMMAD ISSUE

Defendants Harloff, Raggi, Mazzeo, and Alessi move to dismiss the indictment, or in the alternative for suppression of evidence, on the ground that the government enlisted the services of defendants' fellow investigator, William Morris, as a government informant. Morris surreptitiously taped conversations with each of these defendants at a time prior to the indictment but after defendants' attorneys each contacted the government for the purpose of thwarting investigative contact with their clients. Defendants contend that the government's employment of Morris for this purpose violated N.Y.Code of Professional Responsibility DR 7-104(A)(1) which is made applicable in this district by Local Rule 5(c). United States v. Hammad, 858 F.2d 834, 837-38 (2d Cir.1988), cert. denied, 498 U.S. 871, 111 S.Ct. 192, 112 L.Ed.2d 154 (1990); Cinema 5, Ltd. v. Cinerama, Inc., 528 F.2d 1384, 1386 (2d Cir.1976) ("The Code has been adopted by the New York State Bar Association, and its Canons are recognized by both federal and state courts as appropriate guidelines for the professional conduct of New York lawyers."); Fund of Funds, Ltd. v. Arthur Andersen & Co., 567 F.2d 225, 227 n. 2 (2d Cir.1977) (same); NCK Organization Ltd. v. Bregman, 542 F.2d 128, 129 n. 2 (2d Cir.1976) (same); Paretti v. Cavalier Label Co., Inc., 722 F.Supp. 985, 986 (S.D.N.Y.1989) (same). Defendants also contend that this conduct was sufficiently "blatant," "outrageous," "egregious," and "dastardly" to violate the Fifth Amendment Due Process Clause, and that the effect of Morris' conduct was to impermissibly invade the attorney-client relationship in violation of the Sixth Amendment.

The predicate for defendants' motions are letters of each counsel. The first communication is a letter, dated December 17, 1990, from Harloff's counsel, John R. Parrinello, Esq., directed to the Chief of the Rochester Division of the United States Attorney's office, Bradley E. Tyler, Esq., which demanded "that no member of your office or any law enforcement agency working for or in conjunction with your office have any contact whatsoever with Mr. Harloff including but not limited to personal interviews, consensual taping and the like." Similarly, on December 27, 1990, Raggi's counsel, David Rothenberg, Esq., sent a letter to Tyler demanding "that no contact be made directly with him, but that the government contact our offices. More specifically, no agents of the government should contact, question or interview officer Raggi without permission." Mazzeo's counsel sent a letter to the Criminal Section of the Civil Rights Division, Department of Justice (Michael J. Gennaco, Esq., of counsel) which demanded "that any and all communications to officer Mazzeo be directed to me. Any attempts to interview or talk with him should be done through me." This letter was dated May 30, 1991. Finally, Alessi's counsel, John F. Speranza, Esq., wrote Gennaco on June 17, 1991, confirming that he represented Alessi.

The Morris conversations, recorded on tapes and transcribed, began on May 8, 1991, and continued through July 17, 1991. The indictment was filed September 3, 1991. No other proceedings concerning the defendants, formal or informal, other than the grand jury investigation itself, were previously commenced.

In affidavits filed by Gennaco, Cathleen M. Mahoney, Esq. (also an attorney in the Criminal Section of the Civil Rights Division), Michael Berkow (an investigator with the Rochester Police Department), and FBI Special Agent William Dillon, the government explains the purpose of enlisting Morris in the investigation. Each denies the existence of any improper or illicit investigative purpose. It appears from these affidavits that Morris contacted Berkow at the Rochester Police Department in January of 1991 to express his interest in cooperating with the civil rights investigation then known to be ongoing. According to Gennaco and Berkow, Morris said "that he was afraid to cooperate because he was aware of leaks from the grand jury and thought that the other targets of the investigation would learn of his cooperation." Gennaco affidavit at ¶ 3; Berkow affidavit at ¶ 3 (both attached as Exhibit E in the government's appendix). On the other hand, Morris told Berkow that he would "wear a listening device to meetings with the other targets."

A meeting was convened between Gennaco, Mahoney, Berkow, FBI Special Agent Eugene Harding, Morris, and Lawrence J. Andolina, Esq., Morris' attorney, during which the subject of cooperation and an investigative strategy was discussed. According to Gennaco and Berkow, Morris informed the meeting participants that the defendants often met without their attorneys to discuss the case. Morris also told them that some of the defendants "discussed the possibility of taking violent action against suspected prosecution witnesses, investigators and/or high officials of the Rochester Police Department." Gennaco affidavit at ¶ 5; Berkow affidavit at ¶ 5. A cooperation...