Opinion
No. 01 CR 60 A, 01CR00060
November 19, 2001
REPORT and RECOMMENDATION
Before the Court is the joint motion filed on behalf of both defendants Dennis John Malvasi ("Malvasi") and Loretta Clare Marra's ("Marra") suppress certain evidence (Docket No. 7).
Background
The defendants have been named in a superceding indictment issued on June 28, 2001, inter alia, on charges of obstructing, and conspiring to obstruct the administration of justice in connection with the apprehension of James Charles Kopp ("Kopp") and the investigation into the murder of Dr. Barnett Slepian.
In the instant motion, the defendants seek to suppress all evidence obtained as a result of electronic surveillance in this case. More specifically, the defendants challenge the following orders:
1. On November 1, 2000, Honorable Ellsworth A. Van Graafeiland, Circuit Judge for the United States Court of Appeals for the Second Circuit, signed an Order authorizing the Federal Bureau of Investigation for a thirty (30) day period the interception of oral communications of Marra and Malvasi, in and around a Gold Malibu automobile, which occurred on November 6, 2000, for the purpose of obtaining evidence concerning the location of a fugitive as defined in Section 2516(1)(l) pursuant to Section 2516(1)(n)
2. On January 19, 2001, Honorable Whitman Knapp, U.S. District Court Judge for the Southern District of New York, signed an Order authorizing the Federal Bureau of Investigation for a thirty (30) day period the interception of oral communications of Marra and Malvasi, in and around a Ford Winstar automobile, which occurred from January 20-22, for the purpose of obtaining evidence concerning the location of a fugitive as defined in Section 2516(1)(l) pursuant to Section 2516(1)(n) and for obtaining evidence concerning the commission of offenses enumerated in Section 2516 of Title 18, United States Code, that is, Title 18, United States Code, Section 1951.
3. On February 2, 2001, Honorable Alfred J. Lechner, Jr., District Court Judge for the District of New Jersey, signed an Order authorizing the Federal Bureau of Investigation for a thirty (20) day period the interception of oral communications of Marra and Malvasi, in and around a white Chrysler Grand Voyager automobile and in two hotels rooms, which occurred from February 3-4, 2001, for the purpose of obtaining evidence concerning the location of a fugitive as defined in Section 2516(1)(l) pursuant to Section 2516(1)(n) and for obtaining evidence concerning the commission of offenses enumerated in Section 2516 of Title 18, United States Code, that is, Title 18, United States Code, Section 1951.
4. On March 1, 2001, Honorable Nina Gershon, U.S. District Court Judge for the Eastern District of New York, signed an Order authorizing the Federal Bureau of Investigation for a thirty day (30) day period the interception of oral communications of Marra and Malvasi at Apartment 2d 385 Chestnut Street, Brooklyn, New York, which began March 4, 2001, for the purpose of obtaining evidence concerning the location of a fugitive as defined in Section 2516(1)(l) pursuant to Section 2516(1)(n) and for obtaining evidence concerning the commission of offenses enumerated in Section 2516 of Title 18, United States Code, that is, Title 18, United States Code, Section 1951.
5. On March 2, 2001, Honorable Dennis M. Cavanaugh, District Court Judge for the District of New Jersey, signed an Order authorizing for a thirty (30) day period the interception of oral communications of Marra and Malvasi, in and around a red Ford Winstar automobile and in hotel rooms, which occurred from March 3-4, 2001, for the purpose of obtaining evidence concerning the location of a fugitive as defined in Section 2516(1)(l) pursuant to Section 2516(1)(n) and for obtaining evidence concerning the commission of offenses enumerated in Section 2516 of Title 18, United States Code, that is, Title 18, United States Code, Sections 1951 and 1028.
6. On March 14, 2001, Honorable William M. Skretny, District Court Judge for the Western District of New York, signed an Order authorizing the Federal Bureau of Investigation for a thirty (30) day period the interception of electronic communications of Maria, Malvasi and Kopp made to or through the Yahoo account with the user ID of aheaume, registered under the name of heaume alyssa, for the purpose of obtaining evidence concerning the location of a fugitive as defined in Section 2516(1)(l) pursuant to Section 2516(1)(n) and for obtaining evidence concerning the commission of offenses enumerated in Section 2516 of Title 18, United States Code, that is, Title 18, United States Code, Sections 1071 and 1503.
7. On March 21, 2001, Honorable Reena Raggi, District Court Judge for the Eastern District of New York, signed an Order authorizing the Federal Bureau of Investigation for a thirty (30) day period the interception of wire communications of Marra, Malvasi and Kopp occurring over telephone numbers (718)647-9440, (917) 833-1317 and (917) 826-8520, for the purpose of obtaining evidence concerning the location of a fugitive as defined in Section 2516(1)(1) pursuant to Section 2516(1)(n) and for obtaining evidence concerning the commission of offenses enumerated in Section 2516 of Title 18, United States Code, that is, Title 18, United States Code, Sections 1071 and 1503.
Termination Date of Warrants
The defendants assert that each of the seven warrants is defective in that the warrants failed to provide for termination once the target communication had been intercepted. Affidavit of Joseph M. LaTona (Docket No. 7) ["LaTona Affidavit"] at ¶ 15. In this regard, the defendants rely entirely on Berger v. New York, 388 U.S. 41 (1967).
No warrant to intercept such wire, oral or electronic communications may be authorized "for any period longer than is necessary to achieve the objective of the authorization, nor in any event longer than thirty days." 28 U.S.C. § 2518 (5). A review of each of the seven warrants reveals that each was to terminate "upon the attainment of the authorized objectives, not to exceed thirty (30) days measured from the earlier of the day on which the investigative or law enforcement officers first begin to conduct an interception of this order or ten (10) days after the order is entered." (November 1, 2000 Warrant at page 4; January 19, 2001 Warrant at page 4; February 2, 2001 at pages 4-5; March 1, 2001 Warrant at page 4; March 2, 2001 Warrant at pages 4-5; March 14, 2001 Warrant at page 6; March 25, 2001 Warrant at page 7). Further, each of the warrants was issued based upon a finding of probable cause that Malvasi and Marra were in communication with Kopp and were facilitating his fugitive status. Thus, each of the seven warrants comply with 28 U.S.C. § 2518 (5).
The Berger case relied upon by the defendants involved a New York state statute not 18 U.S.C. § 2518. In that case, the Supreme Court struck down the New York statute based upon numerous infirmities, including the fact that the statute did not require, and the warrant did not provide for, the termination of the warrant after the objective of the warrant was obtained. The warrants in the instant matter do not violate the principles set out in Berger.
The November 1, 2000 Warrant
The defendants argue that the November 1, 2000 warrant was ambiguous and without sufficient particularity. As part of the warrant application, the Affidavit of United States Attorney Kathleen M. Mehltretter ("Mehltretter") stated that the oral communications sought to be obtained concern:
i. Discussions concerning the location of the fugitive and how to communicate with him;
ii. Discussions concerning means to send money to the fugitive;
iii. Identification of the names and roles of all accomplices, aiders and abettors, co-conspirators and participants, both known and unknown who are aiding the fugitive.
The warrant itself states that probable cause existed to believe that Marra and Malvasi had evidence of Kopp's location; that Kopp was charged with specified crimes; that the oral communications of Marra and Mulvasi concerning the subject offenses would be obtained through the interception sought by the warrant application; and that the automobile which was the subject of the warrant would be used for oral communications concerning the location of Kopp. See November 1, 2000 Warrant at ¶¶ a through d. Thus, the warrant authorized the interception of such oral communications occurring within the automobile.
This warrant is not ambiguous, confusing or insufficiently particular as defendants contend. Information concerning the harboring of Kopp, the involvement of others in doing so, and the manner or means of providing Kopp with money and other assistance is implicitly, if not expressly, evidence related to Kopp's location.
Evidentiary Hearing Regarding the November 1, 2000 Warrant
The defendants argue that if the November 1, 2000 warrant is facially valid, an evidentiary hearing is required to "ascertain the nature and extent to which that warrant was improperly executed." In support of this application, the defendants assert that the submissions of Mehltretter and Special Agent Joel G. Mercer of the Federal Bureau of Investigation ("FBI") "clearly indicate an intentional and deliberate design to intercept communications that were not properly encompassed by the eavesdrop warrant."
Contrary to the above conclusory characterization of the warrant application materials, the defendants have not demonstrated that the government exceeded the scope of the November 1, 2000 order authorizing the interception or that an evidentiary hearing is warranted.
Necessity
The defendants also challenge each of the interception orders on the grounds that the government failed to exhaust normal investigative techniques. In this regard, the defendants rely on United States v. Lilla, 699 F.2d 99 (2d Cir. 1983). It should be noted that Lilla has been distinguished at least three times by the Court of Appeals and by at least two District Courts in this Circuit. United States v. Torres, 901 F.2d 205 (2d Cir.), cert. denied sub nom. Cruz v. United States, 498 U.S. 906 (1990); United States v. Puglisi, 790 F.2d 240 (2d Cir. 1986); United States v. Ruggeno, 726 F.2d 913 (2d Cir.), cert. denied sub nom. Rabito v. United States, 469 U.S. 831 (1984); United States v. Blount, 30 F. Supp.2d 308 (D. Conn. 1998); and United States v. Crozzoli, 698 F. Supp. 430 (E.D.N.Y. 1988).
An application for electronic surveillance must include "a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear unlikely to succeed if tried or to be too dangerous." 18 U.S.C. § 2518 (3)(c). These requirements are to be construed in a "common sense and realistic fashion." Ruggiero, 726 F.2d at 924. As the Second Circuit has repeatedly made clear:
The purpose of the[se] statutory requirements is not to preclude the use of electronic surveillance until after all other possible means of investigation have been exhausted by investigative agents; rather, they only require that the agents inform the authorizing judicial officer of the nature and progress of the investigation and of the difficulties inherent in the use of normal law enforcement methods.Torres, 901 F.2d at 231.
Finally, in assessing whether the government has satisfied this burden, the Second Circuit has warned that the averments alleged in connection with the use of normal investigative techniques are not to be reviewed de novo. Torres, 901 F.2d at 231. The role of the reviewing Court instead is simply to "decide if the facts set forth in the application were minimally adequate to support the determination that was made." Torres, 901 F.2d at 231; see Ruggiero, 726 F.2d at 924 (use of certain normal investigative techniques — such as search warrants, grand juries or interviews — unnecessary where such techniques would publicize the investigation' and "perhaps jeopardize the investigation itself").
The Court notes that each of the challenged warrants was issued by a different United States District Court Judge or Second Circuit Judge. Each of these jurists concluded that the government had established that "normal investigative procedures have been tried and have failed, reasonably appear to be unlikely if tried, or are too dangerous to employ." (November 1, 2000 Warrant at page 2; January 19, 2001 Warrant at page 2; February 2, 2001 at pages 3; March 1, 2001 Warrant at page 2; March 2, 2001 Warrant at pages 3; March 14, 2001 Warrant at page 3; March 25, 2001 Warrant at page 3). A review of each of the applications sufficiently demonstrates the need for electronic surveillance in compliance with 18 U.S.C. § 2518 and Torres.
Franks Hearing
The defendants seek a hearing under Franks v. Delaware, 438 U.S. 154 (1978), claiming that there were material factual omissions in several of the warrant applications. The defendants assert that the omissions or misrepresentations would have caused a court to find that the necessity requirement was not met. The defendants do not challenge the probable cause findings by any of the judges.
A hearing under Franks is warranted only if a defendant makes a substantial preliminary showing: (1) that the warrant affidavit includes a false statement or material omission; (2) that the allegedly false statement was made knowingly and intentionally or with reckless disregard for the truth; and (3) that the allegedly false statement is necessary to a finding of probable cause. Franks, 438 U.S. at 171. Statements which result from negligence or innocent mistake are insufficient to justify a hearing. Further, the Supreme Court held that:
the challenger's attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. . . . Affidavits or sworn or otherwise reliable statements of witnesses should be furnished or their absence satisfactorily explained. . . . The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant.Franks, 43S U.S. at 171. To infer recklessness from the fact that an omission existed is warranted only when the material omitted would have been clearly critical to the judicial finding. United States v. Reivich, 793 F.2d 957 (8th Cir. 1986) (noting that existing precedents for such an inference have in fact only been made when additional circumstances in support of the finding of recklessness existed). Even if that substantial showing is made, defendants still are not entitled to a hearing unless the allegedly false statements are material to a finding of probable cause. Franks, 438 U.S. at 171-72. Franks does not require that all statements in an affidavit be completely accurate; it simply requires that the statements be "believed or appropriately accepted by the affiant as true." Franks, 438 U.S. at 165; United States v. Campino, 890 F.2d 588, 592 (2d Cir. 1989), cert. denied, 498 U.S. 866 (1990). A defendant is entitled to a hearing only if the remaining content is insufficient to support the warrant. Franks, 438 U.S. at 172; United States v. Gotti, 771 F. Supp. 535, 539 (E.D.N.Y. 1991); United States v. Labate, 2001 WL 533714 (S.D.N.Y. 2001). Moreover, a defendant's submission of his own counter-interpretation of acts does not, by itself, satisfy the showing required for a Franks hearing. United States v. Jimenez, 824 F. Supp. 351, 361 (S.D.N.Y. 1993).
The defendants focus primarily on the November 1, 2000 application and supporting affidavit. Specifically, the defendants allege that the government failed to fully advise the Court regarding the following: (1) that the informant, identified as CS-1, was being paid by the FBI, (2) that the informant allegedly watched an episode of "60 Minutes" with Marra in Marra's apartment, (3) whether the warrant application misstated the informant's reluctance to agree to testify, (4) that, in the Summer of 2000, Marra had recruited the informant to scout clinics, and (5) that a second informant was available. The thrust of the defendants argument appears to be that if the Court had been provided with this information, it may have concluded that the government had failed to establish that traditional investigative techniques were inadequate and that the necessity for electronic surveillance was lacking.
In its November 2000 and January 2001 warrant applications, the government failed to advised the respective Courts that CS-1 was a paid informant. According to the defendants, this is significant because the government informed the respective judges reviewing those warrant applications that the informant refused to wear a wire or have his/her conversations recorded. This would go toward establishing the necessity of electronic surveillance. The defendants assert that had the reviewing Courts been aware that the informant was paid, they might have required the government to offer the informant "additional monies" to wear a wire, before finding that electronic surveillance was necessary. LaTona Affidavit at ¶ 60. This argument is not persuasive. Initially, the Court notes that the fact that the informant was paid was disclosed in the subsequent warrant applications. A finding of necessity was made in each of those instances notwithstanding such information. Further, the government presented the Court with other information limiting the effectiveness of the informant, for example, the fact that Marra instructed her not to talk on the phone about Kopp. The fact that the government is working with an informant does not preclude, by itself, a finding that electronic surveillance is appropriate under 18 U.S.C. § 2518. Finally, the necessity requirement does not require that every possible investigative method be employed nor that the government use every available incentive to induce informants to testify before interception is used. United States v. Scibelli, 549 F.2d 222 (1st Cir.) cert. denied, 431 U.S. 960 (1977); United States v. Robertson, 504 F.2d 289, 293 (5th Cir. 1974), cert. denied, 421 U.S. 913 (1975) (the need to advise the Court of traditional investigative efforts is not intended to foreclose electronic surveillance until every imaginable method of investigation has been unsuccessfully attempted).
The defendants' argument challenging the warrant on the grounds that the government failed to advise the Court where Marra and the informant watched the "60 Minutes" episode is similarly unpersuasive. The government informed the Court that the informant had watched the "60 Minutes" episode with Marra. The government did not state where this occurred. The defendants speculate that it occurred in Marra's apartment. They have presented no evidence to support this conjecture. Once again, according to the defendants, this omission is significant because, in the warrant application, the government had advised the Court that the informant could not spend time with Marra in Marra's apartment because the informant was allergic to Marra's pets. The defendants contend that if the informant watched the television show in Marra's apartment it indicates that the informant could spend time with Marra in Marra's apartment, thus, questioning the necessity of the surveillance. The government asserts that the informant was not aware of the location of Marra's apartment until February 14, 2001, and therefore, could not have visited the apartment during or prior to November 2000 when the warrant application was made. (Government's Response to Motion to Suppress (Docket No. 10) at page 20). The defendants do not appear to dispute this factual representation. In any event, even if the informant was able to visit Marra's apartment on one occasion, that does not necessitate a finding that the informant was not allergic to Marra's pets or that continued exposure to the apartment would not have caused the informant discomfort or created a health problem. The defendants offer only pure conjecture in this regard. Similarly, although the defendants question the validity of the warrant application to the extent it advised the reviewing Court that the informant was reluctant to testify, the defendants assert this in a conclusory fashion and do not present any evidence which would call those representations into question.
Further, the defendants argue that the failure of the government to advise the Court, in the November 2000 application, that Marra had recruited the informant to "scout" abortion clinics in the summer of 2000 was a material omission. Again, this is offered in support of the defendants' argument that electronic surveillance was not necessary because the informant would have had ample access to Marra during such scouting missions. The government points out that no such scouting missions" took place until February of 2001. (Government's Response to Motion to Suppress (Docket No. 10) at page 21). The defendants do not appear to dispute this fact. Thus, the November 2000 application was not misleading. In any event, the defendants once again misread the necessity requirement under 18 U.S.C. § 2518.
Finally, the defendants assert in conclusory fashion that at the time the government applied for the November 2000 warrant it was aware of a second informant. The defendants appear to argue that this second informant could have provided information about the location of Kopp beyond that which is stated in the warrant application, and that this would have weighed against a finding of necessity with respect to electronic monitoring. Once again, the defendants offer no evidence whatsoever to support this argument. The Court notes that the several Courts reviewing the subsequent applications including this information did not conclude that this information precluded a finding of necessity.
The Court has reviewed each of the warrant applications and finds that the issues raised by the defendants are not sufficiently material, separately or cumulatively, so that the inclusion of this information would have resulted in a different conclusion regarding the necessity of electronic surveillance or the existence of probable cause. There is no reason to believe that a judge presented with an affidavit which included the information alleged as omitted would have failed to make a finding of necessity. United States v. Fermin, 32 F.3d 674, 676-77 (2d Cir. 1994). cert denied, 513 U.S. 1170 (1995); Laaman v. United States, 973 F.2d 107, 115 (2d Cir. 1992), cert. denied, 507 U.S. 954 (1993); U.S. v. Chow, 2001 WL 1347236 (E.D.N.Y., 2001) (defendant did not meet burden of establishing that the alleged misstatements were intentionally or recklessly made).
The defendants have failed to meet the threshold necessary to warrant aFranks hearing with respect to any of the challenged warrant applications. The defendants motion to suppress the evidence obtained pursuant to the wiretap orders should be denied.
The Search of the Wallet
During February 2001. Marra entrusted her wallet to the informant identified as CS-1. It is undisputed that while in possession of that wallet, CS-1 searched the wallet finding two telephone numbers. The informant provided this information to the FBI.
Marra now seeks to suppress this evidence as an illegal warrantless search and seizure inasmuch as the informant was allegedly acting as an agent for the government. The government contends that Marra had no expectation of privacy in the wallet when she voluntarily gave it over to the informant.
Although the issue is presented in a joint motion, the defendants have not offered any authority which would suggest that Malvasi has standing to challenge the search of the wallet.
The Court need not determine whether or not Marra had waived or abandoned any expectation of privacy in the wallet by turning it over to the informant because the telephone numbers at issue were independently discovered in connection with the search of 385 Chestnut Street, Apt. 2D, Brooklyn, New York on March 29, 2001 pursuant to a warrant. The Court finds that the government has established that this evidence would have been independently found and is subject to the "inevitable discovery" doctrine. United States v. Whitehorn, 829 F.2d 1225, 1230 (2d. Cir. 1987).
Conclusion
Based on the above, it is recommended that the defendants' motion to suppress evidence (Docket No. 7) be denied in its entirety.
Pursuant to 28 U.S.C. § 636 (b)(1). it is hereby ordered that this Report Recommendation be filed with the Clerk of the Court and that the Clerk shall send a copy of the Report Recommendation to all parties.
ANY OBJECTIONS to this Report Recommendation must be filed with the Clerk of this Court within ten(10) days after receipt of a copy of this Report Recommendation in accordance with 28 U.S.C. § 636 (b)(1), Fed.R.Civ.P. 72(b) and WDNY Local Rule 72(a)(3).
FAILURE TO FILE OBJECTIONS TO THIS REPORT RECOMMENDATION WITHIN THE SPECIFIED TIME, OR TO REQUEST AN EXTENSION OF TIME TO FILE OBJECTIONS, WAIVES THE RIGHT TO APPEAL ANY SUBSEQUENT ORDER BY THE DISTRICT COURT ADOPTING THE RECOMMENDATIONS CONTAINED HEREIN. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); F.D.I.C. v. Hillcrest Associates, 66 F.3d 566 (2d. Cir. 1995); Wesolak v. Canadair Ltd., 838 F.2d 55 (2d Cir. 1988).
Please also note that the District Court, on de novo review, will ordinarily refuse to consider arguments, case law and/or evidentiary material which could have been, but was not, presented to the Magistrate Judge in the first instance. See Patterson-Leitch Co. Inc. v. Massachusetts Municipal Wholesale Electric Co., 840 F.2d 985 (1st Cir. 1988).
Finally, the parties are reminded that, pursuant to WDNY Local Rule 72.3(a)(3), "written objections shall specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for such objection and shall be supported by legal authority." Failure to comply with the provisions of Rule 72.3(a)(3) may result in the District Court's refusal to consider the objection .
So ordered.
Decision Order
Before the Court are the following motions: defendant Dennis John Malvasi's ("Malvasi") omnibus motion for various relief (Docket No. 5) and Malvasi's and Loretta Clare Marra's (Marra) joint-motion to suppress certain evidence (Docket No. 7). Also, before the Court is defendant Marra's motion to file an oversized brief (Docket No. 12) which is hereby granted nunc pro tunc. The parties have advised the Court that no discovery issues remain unresolved at this time. Thus. Malvasi's omnibus motion (Docket No. 5), except as it relates to the request to suppress evidence, is denied without prejudice.So Ordered.
Decision Order
Before the Court are the following motions: defendant Dennis John Malvasi's ("Malvasi") omnibus motion for various relief (Docket No. 5) and Malvasi's and Loretta Clare Marra's (Marra) joint-motion to suppress certain evidence (Docket No. 7). Also, before the Court is defendant Marra's motion to file an oversized brief (Docket No. 12) which is hereby granted nunc pro tunc. The parties have advised the Court that no discovery issues remain unresolved at this time. Thus. Malvasi's omnibus motion (Docket No. 5), except as it relates to the request to suppress evidence, is denied without prejudice.
The motion to suppress will be discussed in a separate Report Recommendation.
So Ordered.