The opinion of the court was delivered by: BROTMAN
Presently before the court is the motion of defendants Arnold Squittieri and Alphonse Sisca to suppress voluminous evidence obtained between November, 1981 and July, 1982 as a result of the electronic surveillance of the residence and home telephones of alleged unindicted co-conspirator, Angelo Ruggiero. In support of their motion, defendants assert that they are entitled to the suppression of all, or at least a portion, of the fruits of the government's eight-month electronic surveillance for violations of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510, et seq., and the Fourth and Fifth Amendments of the United States Constitution due to: (1) the inclusion by government agents of "false and misleading statements" in their applications submitted to the issuing judges for the electronic surveillance of Ruggiero's home and telephones; (2) the government's failure to "minimize" interceptions as required by Title III and the authorizing court orders; (3) the government's failure to timely obtain judicial sealing of the original recordings; (4) the government's failure to satisfy the "alterative investigation techniques" requirement of Title III; and (5) the submission by government agents of applications for electronic surveillance unsupported by probable cause.
There has been no dearth of litigation on the subject of the admissability of the so-called "Ruggiero surveillance tapes." In fact, the precise issues raised by defendants herein in support of their motion to suppress have been addressed, in one form or another, by several other judges in the Eastern and Southern Districts of New York. Where applicable, this court shall refer to those prior cases in the following manner: United States v. Joseph Massino, et al., No. 81 Cr. 803 (S.D.N.Y.) (Sweet, J.) (hereinafter referred to as "the Massino case"); United States v. Angelo Ruggiero, et al., 83 Cr. 412 (E.D.N.Y.) (Costantino, J.) (hereinafter referred to as "the Ruggiero case"); and United States v. Aniello Dellacroce et al., 85 Cr. 178 (E.D.N.Y.) (Nickerson, J.) (hereinafter referred to as "the Dellacroce case").
For the reasons stated below, defendants' motion to suppress electronic surveillance evidence obtained from oral and wire intercepts of Ruggiero's home and telephones between November, 1981 and July, 1982 is denied.
On June 4, 1987, defendants Arnold Squittieri and Alphonse Sisca were charged in a two-count indictment with conspiracy to distribute and with the actual distribution of heroin. Subsequently, on December 18, 1987, the grand jury handed down a superceding indictment against defendants containing both the conspiracy and substantive counts, but adding to Count I the allegations that defendants "were associated with Angelo Ruggiero and other members of the Gambino Organized Crime Family" and that "in the spring of 1982, there was a rule within the Gambino Family that any member or associate of the Gambino Family caught dealing in heroin would be killed [and that] as part of the conspiracy, and in order to further its objectives, the conspirators took steps to protect themselves from that rule." In its opposition to defendants' suppression motion, the government asserts that, through the introduction of the electronic surveillance evidence, it will attempt to prove that the defendants' coconspirators included, among other individuals not indicted herein, Angelo Ruggiero.
A. " False and Misleading Statements" in Electronic Surveillance Applications
Defendants contend that Special Agent Donald W. McCormick of the Federal Bureau of Investigation perjured himself on successive applications for electronic eavesdropping authority in violation of 18 U.S.C. § 2518(1)(e), which requires an agent seeking a judicial order for electronic surveillance to include in his application a "full and complete statement" of any knowledge he possesses concerning previous applications involving the same "persons, facilities or places" sought to be electronically surveilled. Specifically, defendants assert that at the time Agent McCormick submitted his eavesdropping applications for court approval he knew, but either intentionally or recklessly failed to reveal, that: (1) John Gotti was the target of both state and federal investigations; (2) Gotti maintained his headquarters at the Bergen Hunt & Fish Club, and met there daily with Angelo Ruggiero, Frank Guidici and others; (3) the Bergen Club was currently under electronic surveillance by the District Attorney's Office in Queens, New York; (4) Lieutenant Francheschini had subpoenaed Ruggiero's toll records for the purpose of tapping his home phone; (5) the FBI, through McCormick's own actions, had been accused by Queens officials of technical interference with the Bergen Club "bug"; and (6) the bugging of the Bergen Club was being done in the hopes of overhearing Gotti and Ruggiero. (See Defendants' Brief in Support of Motion to Suppress, at 23). However, defendants allege, notwithstanding this wealth of knowledge concerning the previous electronic surveillance of the Bergen Hunt & Fish Club and its regular members, McCormick falsely stated in his original affidavit of November 9, 1981 that "no other application is known to have been made to any judge for authorization to intercept wire communications involving Angelo Ruggiero, John Gotti, Eugene Gotti, and Jackie Cavallo." (See Affidavit of John Gleeson, Exhibit A, at 13).
The government argues that defendants cannot prevail on this theory for two reasons. First, it contends, the issue of Agent McCormick's "knowledge" at the time he submitted his affidavits in support of the electronic surveillance was the subject of a lengthy hearing in the Massino case, at the conclusion of which Judge Sweet denied defendants' motion to suppress. Second, the government contends, even assuming that the "prior authorization" portions of McCormick's affidavits were materially incorrect, suppression of the conversations intercepted, or their fruits, would not be an appropriate Title III remedy.
Section 2518(1)(e) of Title 18 of The United States Code requires that each application for an order authorizing electronic surveillance include:
a full and complete statement of the facts concerning all previous applications known to the individual authorizing and making the application, made to any judge for authorization to intercept, or for approval of interceptions of wire, oral, or electronic communications involving any of the same persons, facilities or places specified in the application, and the action taken by the judge on each such application.
However, the Supreme Court has left no doubt that not every violation of the provisions of Title III mandates suppression of electronic surveillance evidence or its fruits. United States v. Chavez, 416 U.S. 562, 574-75, 94 S. Ct. 1849, 40 L. Ed. 2d 380 (1974). Rather, "suppression is required only for a failure to satisfy any of those statutory requirements that directly and substantially implement the congressional intent to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device." United States v. Giordano, 416 U.S. 505, 527, 40 L. Ed. 2d 341, 94 S. Ct. 1820 (1974). Thus, the relevant inquiry for suppression of evidence under Title III is whether the provision, pursuant to which there was non-compliance, is one which Congress intended to play "a central, or even functional, role in guarding against unwarranted use of wiretapping or electronic surveillance." United States v. Chavez, 416 U.S. at 578.
Numerous courts have concluded that an intentional failure to comply with the provisions of Title III mandates the suppression of the contents of wire or oral communications, see e.g., United States v. Harrigan, 557 F.2d 879, 884-85 (1st Cir. 1977); United States v. Abramson, 553 F.2d 1164, 1170-71 (8th Cir. 1977); United States v. Massino, 657 F. Supp. 101, 107 (S.D.N.Y. 1987), and at least one court has suggested that even a reckless failure to comply with Title III's provisions warrants the remedy of suppression. United States v. Sullivan, 586 F. Supp. 1314, 1323 (D.Mass. 1984).
In ruling on defendants' motion, we must first determine whether Agent McCormick failed to comply with the "prior applications" provision of § 2513(1)(e) and, if so, whether suppression of the electronic surveillance evidence and its fruits is mandated under the statute. With regard to the first issue, Judge Costantino concluded, solely on the basis of a review of Agent McCormick's affidavits in support of his wiretap applications, that he had not violated the terms of § 2518(1)(e), and denied defendants' motion without a hearing. In his memorandum opinion, Judge Costantino observed that:
although McCormick knew of the existence of the Queens County surveillance, this fact in and of itself does not result in this court finding a violation of 2518(1)(e) or that McCormick committed perjury. Section 2518(1)(e) requires that the application set forth a statement concerning all previous applications known to the individual authorizing and making the application . . . involving any of the same persons, facilities, or places. Agent McCormick was not made privy to any information resulting from the Queens County interceptions. McCormick did not know the "persons" named on the Queens County application.
United States v. Ruggiero, No. 83-412 (E.D.N.Y. Sept. 24, 1986) (See Government's Opposition to Defendants' Motion to Suppress, Exhibit B, at 2). Judge Nickerson also rejected defendants' contention that Agent McCormick failed to comply with 2518(1)(e) without a hearing. (See Affidavit of John Gleeson, dated September 25, 1987, at para. 4). Unlike the Ruggiero and Dellacroce courts, we cannot conclude solely on the basis of Agent McCormick's affidavits that he had no knowledge of those named as interceptees in the prior electronic surveillance conducted by the Queens County District Attorney's Office. We agree with Judge Sweet's conclusion that "McCormick's own admission that he knew of the criminal investigation surrounding the Bergen Hunt & Fish Club and the electronic surveillance there could support an inference that he had conferred with the state officials and may have learned who the named interceptees were." (See Government's Opposition to Defendants' Motion to Suppress, Exhibit A, at 3).