recordings be sealed "immediately upon the expiration of the period of the order," and, that they are therefore entitled to suppression of those conversations and any evidence derived therefrom. Specifically, defendants argue that with regard to each of the five orders for electronic surveillance issued between December 29, 1981 and July 7, 1982, the government violated § 2518(8)(a)'s prohibition against the dilatory sealing of tapes and, to this date, has failed to provide a satisfactory explanation justifying those delays. The chart below reflects the five court orders during this period that were allegedly violated due to a delay in the sealing of the tapes, their starting and ending dates, the dates on which the tapes were sealed and the net period of delay:
PARTIES OFFENSES BEGUN ENDED SEALED DELAY
Order Angelo Ruggiero 18 U.S.C. 371, 12/29/81 1/28/82 3/11/82 42 days
#2 John Gotti 894, 1955(a)
Eugene Gotti 1962(c)
Order Angelo Ruggiero 18 U.S.C. 371, 2/ 4/82 3/ 6/82 3/11/82 5 days
#3 John Gotti 894, 1955(a)
Eugene Gotti 1962(c)
Order Angelo Ruggiero 18 U.S.C. 371, 4/ 5/82 5/ 5/82 5/19/82 14 days
#4 John Gotti 894, 1955(a)
Eugene Gotti 1962(c), 21
John Carneglia U.S.C. 846, 841
Order Angelo Ruggiero 18 U.S.C. 371, 5/ 7/82 6/ 6/82 6/18/82 12 days
#5 John Gotti 894, 1510, 1955(a)
Eugene Gotti 1962(c), 21
John Carneglia U.S.C. 846, 841,
John Conroy § 100.10, 105-15,
Edward Lino 125.25 Penal
Law of State
of New York
Order Angelo Ruggiero 18 U.S.C. 371, 6/ 7/82 7/ 7/82 7/22/82 15 days
#6 John Carneglia 894, 1510, 1955(a)
Edward Lino 1962(c), 21
Michael Coiro U.S.C. 841, 846,
Joseph Guagliano § 100.10, 105.15,
Eugene Gotti 125.25 Penal
Law of State
of New York
Defendants contend that each of the above five court orders must be construed as separate and distinct from one another and, as such, must each be sealed in compliance with § 2518(8)(a). However, the government argues that the five challenged orders should be viewed as two phases of essentially continuous surveillance -- the third order being a mere extension of the second, and the fifth and sixth being mere extensions of the fourth. It further asserts that since "extensions," "renewals," or "continuations" of court orders are not subject to the "immediate" sealing requirement of § 2518(8)(a), it must justify only two delays -- the five-day gap after order #3 and the 15-day gap after order #6.
In Massino, Judge Sweet rejected defendants' argument that each electronic surveillance order must be viewed as separate and distinct from one another, and held that orders #2 and #3 should be viewed as one continuous phase of surveillance, while orders #4, #5 and #6 should be viewed as another. 605 F. Supp. at 1577.
Hence, in Massino the government was required to provide an explanation only for delays in sealing after orders #3 and #6. We concur with Judge Sweet's conclusion on this point.
The government alleges that the five-day gap after order #3 was due strictly to "normal administrative procedures required before the submission of the original recordings to the court." (See Government's Brief in Opposition to Motion to Suppress, at 20-21). Agent McCormick states in his September 20, 1984 affidavit in opposition to defendants' motion to suppress that these "administrative delays" included: a review of the duplicate tapes to ensure proper reproduction or the necessity for quality enhancement, a comparison of the duplicates with the monitoring logs, a check of the originals to ensure proper chain of custody and the arrangement of transportation of the originals to the court of the issuing judge. (See Government's Appendix, Exhibit H, at 127-128).
In light of the ample case law recognizing "administrative delays" as a justifiable cause for failure to seal "immediately" the original electronic recordings, see e.g., United States v. McGrath, 622 F.2d 36 (2d Cir. 1980); United States v. Vazquez, 605 F.2d 1269 (2d Cir. 1979), we find the explanation provided by the government for its five-day delay after order #3 satisfactory, and, therefore, deny defendants' motion to suppress the contents of those tapes or the fruits thereof. See also United States v. Massino, 605 F. Supp. at 1578.
The government contends that the 15-day sealing delay following order #6 "resulted primarily from the necessity of conducting an immediate, sensitive and comprehensive investigation into a 'leak' of information concerning the Title III microphone investigation of Ruggiero and his associates." (See Appendix to Government's Brief, Exhibit H, at 128). Concluding that "mere disregard of the statute while pursuing other investigative efforts is not sufficient" and that "justifications unrelated to problems inherent in the sealing of the tapes" could not excuse delays in sealing, Judge Sweet found the government's explanation for the 15-day delay unsatisfactory, and suppressed the fruits of the sixth order. Id. at 1579.
However, on an appeal of that ruling by the government, the Second Circuit reversed, holding that Judge Sweet's distinction between "administrative" delays and unacceptable "manpower" or "collection of resource" delays was legally incorrect. United States v. Massino, 784 F.2d 153, 157 (2d Cir. 1986). Although the court conceded that the delay was inordinately long, it stated explicitly that "the need to divert personnel to the leak investigation is a satisfactory explanation for failing to seal the tapes immediately," id. at 158, and that where, as here, the existence of the leak threatened to undermine an extensive investigation into organized crime and possibly endanger the lives of confidential government informants, the delay was excusable. Id.
We agree with the Second Circuit's ruling on this issue and, therefore, deny defendants' motion to suppress the fruits of the government's electronic surveillance pursuant to orders #4, #5 and #6.
D. Failure to Exhaust "Normal Investigative Procedures "
Section 2518(3)(c) of Title 18 of the United States Code requires that before an issuing judge can authorize electronic surveillance, he must find that "normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous." 18 U.S.C. § 2518(3)(c). Defendants argue that the government failed to comply with this provision in two important ways. First, the non-eavesdropping techniques utilized by the government to conduct an investigation into the alleged criminal activities of high-ranking Gambino Family members were entirely sufficient. Second, the government failed to consider two other highly viable alternatives to electronic surveillance -- i.e., use of undercover agents and the use of consensual recordings by government informants.
On the issue of the exhaustion of "normal investigative procedures," defendants Squittieri and Sisca have raised essentially the same arguments as those asserted by the defendants in Massino, Ruggiero, and Dellacroce. In his opinion, with which Judges Costantino and Nickerson concurred, Judge Sweet rejected both of defendants' arguments, holding that "the affidavits of McCormick satisfactorily establish that normal investigative procedures had been used to the extent reasonably likely to succeed and that such ordinary procedures were unlikely to produce additional success." United States v. Massino, 605 F. Supp. at 1574. We too have conducted our own independent review of the McCormick affidavits and have reached the same factual conclusions as those of Judge Sweet. In addition, we feel that Judge Sweet's opinion accurately states the current law on this issue, and, thus, we need not revisit it here.
Therefore, we deny defendants' motion to suppress due to the government's alleged failure to comply with 18 U.S.C. § 2518(3)(c).
E. Insufficiency of Probable Cause
Defendants Squittieri and Sisca attack the issuing judges' probable cause determinations underlying the November 9, 1981 (order #1) and December 29, 1981 (order #2) orders, and, in addition, seek to suppress the fruits of all subsequent orders which relied on the probable cause determinations of the first two. Section 2518(3) of Title 18 to the United States Code permits an issuing judge to order electronic surveillance only after he has made three specific findings of probable cause: (1) an individual is committing, has committed, or is about to commit a particular offense enumerated in 18 U.S.C. § 2516; (2) particular communications concerning that offense will be obtained through such oral or wire interception; and (3) the facilities from which, or the place where, the wire or oral communications are to be intercepted are being used, or are about to be used, in connection with the commission of such offense. 18 U.S.C. § 2518(3)(a), (b) and (d); see also United States v. Massino, 605 F. Supp. at 1571-72.
Since the probable cause supporting the issuance of an order for electronic surveillance is the same as the probable cause required for the issuance of a search warrant, United States v. Falcone, 505 F.2d 478, 481 (3d Cir. 1974), cert. denied, 420 U.S. 955, 43 L. Ed. 2d 432, 95 S. Ct. 1338, 95 S. Ct. 1339 (1975), the relevant inquiry is whether given the "totality of the circumstances" an issuing judge or magistrate could conclude that a search will uncover evidence of wrongdoing. Illinois v. Gates, 462 U.S. 213, 238, 76 L. Ed. 2d 527, 103 S. Ct. 2317 (1983). As the Supreme Court stated in Gates :
The task of the issuing magistrate is simply to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.
Id. In Gates, the court reiterated the time-worn principle that a magistrate's determination of probable cause should be accorded great deference and that "[a] grudging or negative attitude by reviewing courts toward warrants [citation omitted] is inconsistent with the Fourth Amendment's strong preference for searches conducted pursuant to a warrant." Id. at 236, citing to United States v. Ventresca, 380 U.S. 102, 109, 13 L. Ed. 2d 684, 85 S. Ct. 741 (1965).
Our review of the November 9, 1981 affidavit of Agent McCormick in support of his application for an order authorizing the interception of wire communications from Angelo Ruggiero's home telephone in Howard Beach, Queens convinces us beyond a shadow of a doubt that there existed probable cause for the issuance of the surveillance order.
The crux of McCormick's affidavit is comprised of the revelations of five confidential sources. Confidential sources 1 and 2 (hereinafter referred to as "CS-1", "CS-2", "CS-3", etc.) both stated that they had known Ruggiero for more than ten years, and had each been confidential informants for the FBI for more than five. (See McCormick Affidavit, dated November 9, 1981, paras. 7-9, 12). Each had maintained personal contact with Ruggiero over an extended period of time, as a result of which they learned of his "shylocking and gambling" activities (McCormick Aff. para. 7, 9-10). CS-3 was one of the victims of Ruggiero's shylock loans, being forced to make repayment at a rate exceeding 100 percent annually. (McCormick Aff. para. 14).
CS-4, a confidential informant for the FBI for more than a year, who obtained his information about Ruggiero, Eugene and John Gotti and Frank Guidici from "employees" of the Gambino crew and through his personal association with several of the above-named interceptees, states that he has knowledge of Ruggiero's loansharking activities and bookmaking operations, and was told by a member of the Gambino family that Ruggiero serves directly under Gambino "capo" John Gotti (McCormick Aff. paras. 18-20). Finally, CS-5, an FBI informant for more than six years, states that he had maintained close personal contact with Ruggiero up thru October, 1981 and that he had first-hand knowledge of Ruggiero's shylocking and gambling activities, and furthermore, had been told on at least one occasion by Ruggiero himself that "John Gotti was a heavy gambler and loser and owed the Ruggiero and Gotti gambling operation thousands of dollars." (McCormick Aff. para. 21-23).
Upon this extensive record we agree with the conclusion reached by Judge Sweet in Massino that "there was probable cause to believe that communications relating to gambling, loansharking and extortion activities would be obtained through monitoring the telephone at Ruggiero's premises." Id. at 1573.
We also find the existence of probable cause in McCormick's December 29, 1981 affidavit submitted in support of his application for the electronic surveillance of Ruggiero's new residence in Cedarhurst, New York, to United States District Judge Joseph M. McLaughlin. McCormick's second affidavit contains the content of some of the conversations overheard by the FBI pursuant to Judge Bramwell's November 9, 1981 order and additional information provided by four of the five confidential informants. For example, during a November 22, 1981 conversation with an individual referred to as "Philly," Ruggiero discussed the movement of the betting line and noted that "a Brooklyn gambling operation had a half-point lower line than theirs." (See McCormick Affidavit, dated December 29, 1981, para. 9(a)). In addition, CS-3 the shylock victim, provided the FBI with further information concerning the shylocking activities of Ruggiero and Eugene and John Gotti, stating, for instance, that Eugene Gotti had implied that he would use physical force to secure the collection of a debt. (McCormick Affidavit, para. 12). The December 29, 1981 affidavit also contains the statement of CS-5 that he had personally observed Jackie Cavallo and John Gotti call Ruggiero at his new residence on Long Island, and had been informed by members of the "Gotti-Ruggiero crime crew" that Ruggiero was still active in shylocking and gambling matters, and was still continuing to discuss these same matters over his home telephone. (McCormick Affidavit, para. 14).
Although McCormick's December 29, 1981 affidavit is not as detailed or well-documented as his November 9, 1981 affidavit, we conclude that the former when examined "as a whole" and "in a common sense realistic fashion," United States v. Hillard, 701 F.2d 1052, 1062 (2d Cir.), cert. denied, 461 U.S. 958, 77 L. Ed. 2d 1318, 103 S. Ct. 2431 (1983), also establishes probable cause. See United States v. Massino, 605 F. Supp. at 1573. We flatly reject defendants' contention that the allegations contained therein "appear to be [mere] generalized underworld gossip." (See Defendants' Brief at 96). Therefore, for the foregoing reasons, we deny defendants' motion to suppress due to the alleged insufficiency of probable cause supporting the November 9 and December 29, 1981 orders.
Having rejected each of defendants' five challenges to the admissibility of the fruits of the electronic surveillance of Ruggiero's home and telephones from November, 1981 through July, 1982, we hereby deny their motion to suppress.
An appropriate order will be entered.
This matter having been brought before the court on the motion of defendants Arnold Squittieri and Alphonse Sisca to suppress all, or a portion, of the electronic surveillance evidence obtained from the oral and wire interceptions of the home and telephones of Angelo Ruggiero from November 9, 1981 thru July 7, 1982 due to: (1) the inclusion by government agents of "false and misleading statements" in their affidavits in support of their electronic surveillance applications; (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 tape recordings; (4) the government's failure to satisfy the "alternative investigation techniques" requirement of Title III; and (5) the submission by government agents of applications for electronic surveillance unsupported by probable cause; or for a hearing on any or all of the above enumerated issues; and
The court having carefully considered the submissions of the parties; and
For the reasons stated in an opinion to follow shortly hereafter;
IT IS on this 15th day of June, 1988, hereby
ORDERED that defendants' motion to suppress all, or a portion, of the electronic surveillance evidence obtained from the oral and wire interceptions of the home and telephones of Angelo Ruggiero from November 9, 1981 thru July 7, 1982 or for a hearing on any or all of the above-enumerated issues is DENIED.