US v. Marcy, No. 90 CR 1045.

• Decision Date: 06 September 1991
• Docket Number: No. 90 CR 1045.
• Citation: 777 F. Supp. 1400
• Parties: UNITED STATES of America, Plaintiff, v. Pasquale MARCY, a/k/a Pat Marcy, and Fred Roti, Defendants.
• Court: U.S. District Court — Northern District of Illinois

777 F. Supp. 1400

UNITED STATES of America, Plaintiff, v. Pasquale MARCY, a/k/a Pat Marcy, and Fred Roti, Defendants.

No. 90 CR 1045.

United States District Court, N.D. Illinois, E.D.

September 6, 1991.

Terence Gillespie and Edward Genson, Genson, Steinback & Gillespie, Chicago, Ill., for Pasquale Marcy a/k/a Pat Marcy.

Dan Webb and Steve Molo, Winston & Strawn, Chicago, Ill., for Fred Roti.

Tom Durkin and Michael Shepard, Chicago, Ill., for the Government.

MEMORANDUM OPINION AND ORDER

ASPEN, District Judge:

Defendants Pasquale "Pat" Marcy and Fred Roti have filed a motion to dismiss the indictment and to suppress all wiretap evidence against them. Marcy and Roti submit various theories as to the impropriety of certain wiretap authorizations secured by the government in connection with its investigation underlying this case. Specifically, they argue that the government failed to establish probable cause for "surreptitious electronic surveillance" of Marcy's telephone conversations, that violations of 18 U.S.C. § 666 (1988) may not be prosecuted with wiretap evidence, that the government violated 18 U.S.C. § 2517(5) (1988), and that there was no genuine need for the wiretaps at the Counselor's Row Restaurant ("Counselor's Row") frequented by Marcy and Roti in Chicago.¹ As set forth below, we reject each of these contentions and deny the motion.

I. ANALYSIS

A. Probable Cause for Wiretap

Marcy and Roti's first argument is that the government lacked probable cause with respect to Marcy on the very first of its nine applications for electronic surveillance. The November 4, 1988 application and authorization named several persons, including Marcy, as possible targets. Marcy and Roti maintain that the information in the application affidavit concerning Marcy is so "sparse, vague and dated" that it could not establish probable cause to believe that Marcy was engaging in particular criminal conversations over the phone lines listed in the application and authorization. Evidence from the November 4, 1988 surveillance should therefore be suppressed, they contend, and, because the other eight wiretaps were authorized by information from the November 4 wiretap, "all derivative evidence must be suppressed" as well.

This first argument is fundamentally flawed. As the government points out, it is immaterial whether or not Marcy is a properly named "interceptee" in the November 4, 1988 application and authorization. The government need not establish probable cause with respect to each and every person named in a wiretap order. United States v. Martin, 599 F.2d 880, 884-85 (9th Cir.) (the statute "describes those persons who must be named in the application"; "a judge may issue an authorization order upon a showing that probable cause exists with respect to an individual; it does not expressly require a similar showing with respect to each person named in the application") (emphases in original), cert. denied, 441 U.S. 962, 99 S.Ct. 2407, 60 L.Ed.2d 1067 (1979); see also United States v. Dorfman, 542 F.Supp. 345, 377-78 n. 30 (N.D.Ill.) (adopting holding in Martin), aff'd, 690 F.2d 1217 (7th Cir.1982). In fact, the government had no obligation to even name Marcy in the application. United States v. Donovan, 429 U.S. 413, 435-38, 97 S.Ct. 658, 672-73, 50 L.Ed.2d 652 (1977).

The bottom line, as the government suggests, is that Marcy and Roti do not argue that there was insufficient probable cause for the issuance of the authorization with respect to any of the persons named in the application except Marcy. Thus, with law enforcement personnel "properly authorized to intercept Person X's conversations over Person X's home telephones, ... it is difficult to understand how the agents could not also be authorized to intercept Person X's conversations with Marcy. If such intercepted conversations appear to contain evidence of criminality, the conversations may be properly intercepted whether or not Marcy is named as an interceptee," Response at 9, or whether or not there was probable cause specifically as to him.

In correctly pointing out the permutations of wiretap law not acknowledged by Marcy and Roti, the government does not abandon the probable cause ship. Indeed, we agree that the November 4, 1988 affidavit, read as a whole, is sufficient to establish probable cause for believing that Marcy was engaging in particular criminal conversations over the phone lines listed in the application and authorization.

Marcy and Roti's remaining contention that the Counselor's Row wiretaps (authorized March 16, 1989, May 16, 1989, and June 19, 1989) lacked probable cause because they were in some way tainted by the "improper" November 4, 1988 wiretap fails because the November 4 wiretap was not, in fact, improper.

B. Alleged 18 U.S.C. § 666 Violations

Marcy and Roti next maintain that the government's wiretap evidence cannot be used to prove alleged violations of 18 U.S.C. § 666 because § 666 "is not a crime for which interception is authorized." Memorandum at 5 (citing 18 U.S.C. § 2516(1)(a)-(n) (1988)). The defendants cite United States v. Millstone Enterprises, Inc., 684 F.Supp. 867 (W.D.Pa.), rev'd on unrelated grounds, 864 F.2d 21 (3d Cir.1988), in support of their position.

In Millstone, a Pennsylvania state court judge authorized wiretaps on a finding of probable cause that a certain person was violating state prostitution and racketeering statutes. Id. at 869. That person, facing contempt charges in federal court for failing to respond to a summons, argued that the wiretaps were illegal because "they were approved for the investigation of crimes not within the scope permitted by 18 U.S.C. § 2516(2)." Id. at 869-70.² That section permits wiretapping for the investigation of

murder, kidnapping, gambling, robbery, bribery, extortion, or dealing in narcotic drugs, marihuana or other dangerous drugs, or other crime dangerous to life, limb, or property, and punishable by imprisonment for more than one year, ... or any conspiracy to commit any of the foregoing offenses.

18 U.S.C. § 2516(2); see also Millstone, 684 F.Supp. at 870. A federal judge agreed that, because the alleged crimes cited as a basis for the wiretapping authorization were not among the offenses enumerated in § 2516(2), the wiretaps were illegal. Millstone, 684 F.Supp. at 870.

That case has only limited applicability here, however. In Millstone, the wiretap application did not list any crime other than ones not covered by statute. Id. at 869. Here, the government's wiretap application alleged probable cause to believe that certain named persons were violating 18 U.S.C. §§ 1962(c), (d) (1988), crimes enumerated under § 2516(1)(c). That evidence concerning alleged violations of 18 U.S.C. § 666 was also obtained during the course of a lawful wiretap does not mean that such evidence cannot be used to prove the alleged § 666 violations. In fact, as the government points out, not only is this not the type of situation confronting the court in Millstone, other federal courts have made it clear that the government may use lawfully obtained wiretap evidence to prove crimes not specified in the wiretap order, and may do so even if those are crimes not specifically targeted by Title III. See United States v. Pacheco, 489 F.2d 554, 564 (5th Cir.1974) (discussing § 2516(2) and finding that "additional offenses discovered during the course of a proper intercept may be prosecuted regardless of the nature of the offense or the prescribed punishment"), cert. denied, 421 U.S. 909, 95 S.Ct. 1558, 43 L.Ed.2d 774 (1975); see also United States v. Lanza, 341 F.Supp. 405, 412-13 (M.D.Fla.1972).

Further, it would be absurd to suppose that the government could not seize evidence allegedly relating to "non-enumerated" criminality merely because it happened to discover such evidence during the course of otherwise lawful electronic surveillance. See United States v. Williams, 737 F.2d 594, 605-06 (7th Cir.1984) (rejecting defendants' argument that governmental review of "lawfully recorded conversations for evidence of a charge not alleged in the Title III application" is unconstitutional), cert. denied, 470 U.S. 1003, 105 S.Ct. 1354, 84 L.Ed.2d 377 (1985); United States v. Johnson, 539 F.2d 181, 188 (D.C.Cir.1976) ("Officers attending a properly authorized, limited, and supervised wiretap have no obligation to close their ears to unexpected incriminating information on matters unrelated to their immediate investigation.... Like an officer who sees contraband in plain view from a vantage point where he has a right to be, one properly overhearing unexpected villainy need not ignore such evidence."), cert. denied, 429 U.S. 1061, 97 S.Ct. 784, 50 L.Ed.2d 776 (1977).

C. Alleged Violations of 18 U.S.C. § 2517(5)

Marcy and Roti also contend that the government violated 18 U.S.C. § 2517(5) (1988) when it charged them with crimes not listed in the wiretap application. They rely heavily on United States v. Brodson, 528 F.2d 214 (7th Cir.1975), in arguing that the indictment must be dismissed.

United States District Judge Ilana Rovner recently rejected a similar contention in United States v. Shields, No. 90 CR 1044, slip op. at 68-76, 1991 WL 239579 (N.D.Ill. July 30, 1991). We adopt Judge Rovner's analysis without repeating it here, and find that, particularly where the government has brought a superseding indictment after obtaining a § 2517(5) disclosure order, dismissal of the indictment or suppression of certain wiretap evidence is not appropriate.

D. Counselor's Row Wiretaps

The defendants assert that the affidavits submitted in connection with the Counselor's Row wiretap applications "failed to establish a genuine need for the highly intrusive technique of wiretapping." Memorandum at 13. This is essentially a claim that the government did not make a sufficient showing of necessity pursuant to 18 U.S.C. § 2518(1)(c) (1988). That section requires "a full and complete statement as...