OPINION AND ORDER
Currently before this Court are the omnibus pretrial motions of defendants John A. Gotti, Dominick Loiacono, Vincent Zoi-lo, Anthony Plomitallo, Michael Zambou-ros, and Dennis McClain who are charged in various counts of the Indictment with, inter alia, racketeering, conspiracy, extortion, wire fraud, extortion in telecommunications and gambling.
In these motions which, in large part, challenge various aspects of the investigations that culminated in the indictments', the defendants seek to suppress evidence allegedly obtained as the result of illegal electronic surveillance, invalid warrants, and unconstitutional searches. In addition, defendants challenge the sufficiency of the Indictment in a number of respects and seek discovery beyond what has already been provided by the Government. What follows is this Court’s resolution of the motions.
I. SUPPRESSION OF WIRETAP EVIDENCE BASED ON LACK OF PROBABLE CAUSE 1
Defendant John A. Gotti seeks suppression of the fruits of electronic surveillance conducted at various times in 1994, 1995, 1996, and 1997 by state law enforcement officials acting pursuant to
The following are the various eavesdropping authorizations which Gotti contends were issued without probable cause: 2
DATE AUTHORIZED BY SUBJECT OF AUTHORIZATION SUPPORTING AFFIDAVIT
December 20, 1995 Honorable Sondra Miller, Appellate Division, Second Department Authorization of interception of telephone conversations at City Auto Salvage relating to gambling Special Investigator Pasquale Perrotta
January 18,1996 Justice Miller Extension and amendment to include interception of conversations relating to criminal usury, coercion, grand larceny by extortion and conspiracy Special Investigator Ercole Gaudioso
February 15,1996 Justice Miller Extension Special Investigator Gaudioso
March 14,1996 Justice Miller Extension Special Investigator Gaudioso
April 25,1996 Justice Miller Amendment to authorize interception of conversations over Plomitallo’s home telephone and within a 1987 Mercury Special Investigator Gaudioso
May 10,1996 Justice Miller Extension and amendment to discontinue interception within 1987 Mercury Special Investigator Gaudioso
May 17,1996 Justice Miller Amendment to authorize interception within 1987 Mercury Special Investigator Gaudioso
June 6,1996 Justice Miller Extension and amendment to authorize interception of conversations over Gotti’s home telephone and within a 1996 Jeep Special Investigator Gaudioso
June 26,1996 Justice Miller Amendment to authorize interception of telephone at Sutphin Boulevard Special Investigator Gaudioso
July 3,1996 Justice Miller Extension and amendment to authorize interception of telephone at Sutphin Boulevard Special Investigator Gaudioso
DISCUSSION
18 U.S.C. § 2518 sets out the procedures governing the authorization of wiretaps. Section 2518(3) requires a judicial determination that: (1) there is probable cause to believe that a particular type of crime has been, is being, or is about to be committed, (2) there is probable cause to believe that particular communications concerning the crime will be obtained through the wiretapping, (3) normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed or unfeasible, and (4) there is probable cause to believe that the phones to be tapped are being used for criminal purposes or by the target of the wiretap. 18 U.S.C. § 2518(3);
United States v. Wagner,
Probable cause to authorize a wiretap “is established if the ‘totality of the circumstances’ contained in the affidavit indicates a probability of criminal activity and that evidence of the criminal activity could be obtained through the use of electronic surveillance.”
3
Ambrosio,
898
Orders authorizing the interception of wire communications are entitled to a presumption of validity. Therefore, substantial deference is afforded the issuing judicial officer’s determination of probable cause,
Ambrosio,
In approving the December 20, 1995 warrant application, Justice Miller concluded that the affidavits submitted to her provided probable cause to believe that the telephone at City Auto facilitated communications between Gotti and his subordinates and that the interceptions authorized would generate information concerning specified criminal activfly. Based on the December 20, 1995 application, Justice Miller authorized the interception of gambling related communications of the following type:
the identities of co-conspirators; locations where gambling occurs and where gambling proceeds and gambling records are safeguarded; methods by which proceeds are secreted and disbursed to the principáis of the enterprise; ... conversations relating to the acceptance of policy wagers, the money accepted for, and the records of, those wagers; ... the coordination of meetings to pay and collect monies, and to discuss and further illegal gambling. 4
Gotti asserts that the affidavits comprising the December 20 application did not establish probable cause because they contained an insufficient showing that the City Auto phone would be used by the targeted individuals, that Gotti was linked to the illegal activity there, or, for that matter, that the phone was ever used to facilitate gambling.
In support of his claim, Gotti invites the Court to follow his lead in evaluating in isolation discrete allegations in the affidavits, and to conclude that deficiencies with various specific allegations mean that the affidavits, taken as a whole, do not establish probable cause. This approach, however, is flawed, since it is well-established that the allegations contained in a wiretap affidavit should be read in their entirety and in a common-sense manner with each fact gaining color from the others.
United States v. Ruggiero,
The Perrotta Affidavit submitted in support of the December 20, 1995 application was divided into six parts. Part I described the structure of the alleged Gambi-no Family and explained the general rule that subordinates must receive permission from their superiors to engage in criminality and are required to share proceeds with their superiors. Part II identified the targets of the investigation, and specified that Craig DePalma (a former defendant in this case) was a soldier in the crew headed by “capo” Gotti. Part III outlined the evidence of illegal gambling collected to date establishing that evidence of meetings involving the group’s leaders and members would show the existence of the gambling conspiracy. Part IV outlined the evidence of loansharking. Part V outlined the targets’ use of labor organizations to commit extortion. Part VI outlined the evidence of the conspirators’ membership in the Gambino Family, their subordinate status to Gotti, their pattern of meeting with him and their use of phones to coordinate illegal activities. Part VI also identified the Bergin Hunt and Fish Club (“Ber-gin Club”) as a social club that was a traditional meeting place for member^ of the Gambino organization.
The application also incorporated three previous warrants which had been issued by: (1) Acting State Supreme Court Justice Joseph K. West on August 12, 1994, and extended through June 10, 1995, (2) the Honorable Joseph P. Sullivan of the Appellate Division, First Department, on September 27, 1994, and extended through December 22, 1994, and (8) Justice West on June 6, 1995, and extended through December 20,1995.
In discussing the telephone at City Auto, the Perrotta Affidavit established that Got-ti’s home telephone was used on 32 occasions between August 28, 1995 and October 25, 1995 to contact City Auto. The pager of former co-defendant Craig DePal-ma received at least 17 pages between September 22, 1995 and December 18, 1995 from the telephone at City Auto. The Affidavit further stated that eavesdropping over DePalma’s cellular phone indicated that these calls between the instruments consisted of cryptic discussions with unnamed other persons regarding meetings at future, unspecified times. This section also included an example of City Auto’s owner Michael McLaughlin (identified in the Affidavit as a close associate of Gotti) using the telephone to transfer a message from Gotti to DePalma. For example, McLaughlin informed DePalma that “he” wanted McLaughlin to ask DePalma to obtain five tickets to a show “for his sister,” indicating that the tickets were needed for “the three boys, Carmine and her.” Gotti’s sister is married to Carmine Agnel-lo. The section of the Affidavit concerning the telephone at City Auto also averred that the phone was used by DePalma and others to coordinate and discuss meetings with Gotti.
Interceptions such as these establishing the structure, membership and functioning of an illicit enterprise were properly a potential target of interceptions as a source of evidence of particular forms of racketeering such as gambling. Contrary to Gotti’s submission, Justice Miller was not invited to consider in isolation the na
The Gaudioso Affidavit submitted in support of the January 18, 1996 extension and amendment starts by describing how the existence, structure and modus oper-andi of the alleged Gambino Family are related to the criminal operations under investigation. The Affidavit then outlines several phone calls intercepted over City Auto’s telephone line, and indicates that interception has provided evidence of assistance provided by McLaughlin to Gotti. The Affidavit also stated that prior interceptions had revealed that Gotti used the phone himself to discuss affairs and schedule meetings with subordinates. Gaudioso submitted several examples of intercepted calls. One such call, on December 23, 1995, involved an unidentified male, identified only as Charlie, who called City Auto asking to speak to Michael McLaughlin. An employee, Vinny Spirito, had answered the phone and stated that Mike was not in. Charlie reported that one of “John’s” gifts had been left at the restaurant. Charlie directed Spirito, “So send one of the guys you don’t think is going to drop it. I don’t know what the fuck it is, but I ain’t taking no chances.” Gaudioso concluded that, based on his familiarity with the methods and traditions of La Cosa Nostra, the conversation referred to a tribute payment.
On December 23, 1995, an unidentified male caller dialed City Auto and explained that he was looking for “John.” The unidentified male speaker who answered the call indicated that McLaughlin was not at the location, and that he himself could not connect the caller to “John.” Gaudioso concluded, and represented to Justice Miller, that this call indicated McLaughlin’s role in contacting Gotti since an individual who wanted to speak to Gotti, in the first instance, had to ask permission of McLaughlin. On December 23, 1995, Craig DePalma called City Auto and in a terse discussion with McLaughlin asked McLaughlin, “You got it?” McLaughlin responded, “Yeah, it’s right on my desk. I’m going to bring it over to him a little later.” DePalma thankfully replied, “I knew I could rely on you.” On December 26, 1995, a male speaker identified only as Joseph dialed City Auto and asked McLaughlin whether “John” would be available for dinner in order “to speak about a few things.” Joseph mentioned that Gotti “is usually around on Wednesday night.” McLaughlin responded, “That’s right, it’s Tuesday already.” Gotti then got on the phone, explained that he was going to Boston and agreed to meet with Joseph after his return.
Justice Miller’s January 18 amendment and extension authorized the Government to intercept conversations relating to gambling that included:
the identities and relationships of co-conspirators, including conversations establishing the relationship between individuals committing the gambling offenses and those associated with the Gambino crime family, which is controlling the gambling operation; ... the coordination of meetings to pay and collect monies, and to discuss and further illegal gambling, and communications setting up and coordinating meetings between the various members of the criminal conspiracy and the criminal syndicate controlling this gambling activity, and communications establishing the existence of the criminal syndicate;....
The Affidavit submitted in support of the February 15, 1996 extension and amendment demonstrated that electronic surveillance had produced evidence of the ongoing operation of the Gambino Family and criminal activity occurring as a consequence of the DePalmas’ membership in the Gambino Family. The Affidavit also recounts Craig DePalma’s use of the phone at City Auto to arrange an appointment with his brother and an individual named “Rich” at a Manhattan law office, Peter Gotti’s call to City Auto looking for Gotti,
Justice Miller, on April 25, 1996, amended the warrant application to authorize interception of defendant Plomitallo’s home telephone and within his 1987 Mercury. The Heintz Affidavit submitted in support of the application described Plomi-tallo as a close associate of Gotti who transports Gotti to meetings in his 1987 Mercury and has personal knowledge of Gotti’s role in the criminal operations under investigation. Heintz also averred that Plomitallo ordered an unnamed debt- or to tender payments to Gotti — aver-ments indicative of loan sharking activities. Gaudioso’s Affidavit identified pen register, eavesdropping, and physical evidence establishing Plomitallo’s relationship with Gotti. Generally, the Gaudioso Affidavit shows that Plomitallo and Gotti contacted one another by Plomitallo’s home phone and Plomitallo’s pager, that Plomitallo used his home phone to contact McLaughlin, the Bergin Club and 97-11 Sutphin Boulevard, and Gotti called Plomitallo to have him arrange transportation.
On May 10, 1996, Justice Miller authorized an extension of the interception of calls on Plomitallo’s home phone and discontinued authorization to intercept communications within the Mercury. Gaudio-so’s Affidavit in support of the extension also discussed a call from the Bergin Club to Plomitallo’s residence, directing Plomi-tallo to “pick him up five to twelve” and a later conversation that indicated that this person was John Gotti. On May 17, 1996 Justice Miller reauthorized the installation of a listening device in the 1987 Mercury and extended the interception of Plomital-lo’s home telephone. Gaudioso’s Affidavit included observations of Plomitallo’s car outside of the Bergin Club, and Plomitallo at dinner in a back room at a restaurant in Maspeth, New York with Gotti, Craig De-Palma, William Marshall, Michael McLaughlin and others.
On June 6,1996, Justice Miller extended the warrant for eavesdropping over Plomi-tallo’s home telephone and the Mercury, and amended the warrant, inter alia, to permit interception over Gotti’s home telephone and a 1996 Jeep driven by Anthony Amoroso. Gaudioso’s Affidavit alleged that Gotti relied upon his home telephone to contact various members of his organization to arrange transportation to meetings with co-conspirators. The Affidavit outlined routine contact between the Gotti residence and the Bergin Club, the storefront at 97-11 Sutphin Boulevard, where Gotti and Plomitallo stored a parcel that was likely currency, City Auto, Steven Kaplan, one of Gotti’s drivers who also participated in various meetings, McLaughlin, and Plomitallo. The Affidavit used , these facts to conclude that the Gotti residence telephone was fully integrated into the network of telephones, pagers, cellular phones and pagers which Gotti used to arrange the meetings with co-conspirators necessary to his direction and control over the Gambino Family, the organization believed to be responsible for the crimes under investigation.
In support of the interception of oral communications within the 1996 Jeep, the Gaudioso Affidavit indicated that Amoroso was a trusted driver of Gotti who attended and participated in meetings between Gotti and co-conspirators, and that the 1996 Jeep served as a routine mode of transportation for Gotti. Gaudioso also detailed several conversations between and among Amoroso, Plomitallo, McLaughlin and Got-ti concerning transporting Gotti to various places. The Affidavit also detailed a planned trip to Florida in May 1996 by Gotti, Amoroso, and Plomitallo and Gotti’s subsequent withdrawal from the trip,
Surveillance also indicated Amoroso was present at the Bergin Club at times when Gotti’was there and attended gatherings at restaurants that included Gotti and others. On two occasions identified in the Affidavit, parcels were placed into Amoroso’s car following gatherings with others; after one of these occasions, Gotti departed with Amoroso in Amoroso’s Jeep.
On June 26, 1996, Justice Miller amended the warrant to include interceptions over the telephone at the storefront at 97-11 Sutphin Boulevard, and on July 3, 1996, extended and amended the warrant to include interceptions within 97-11 Sutphin Boulevard. Gaudioso’s Affidavit in support of the June 26 application also indicated that the phone at 97-11 Sutphin Boulevard had been used to contact: (1) the home of Gotti on 22 occasions between May 8 and June 14, 1996, (2) the Bergin Club, (3) JAG Brokerage, one of Gotti’s businesses, (4) McLaughlin’s home telephone, (5) Plomitallo’s home telephone, (6) the cellular phone of Amoroso, and (7) Craig DePalma’s pager. The Affidavit indicated that 137 calls had been placed from the phone at 97-11 Sutphin Boulevard to City Auto from May 3 to June 14, 1996, and six calls had been placed to three companies allegedly involved in separate construction and labor official bribery schemes. The Affidavit detailed meetings inside the building with the front gate down obscuring the storefront from public view, and a parcel being deposited at the store on October 12, 1995. The Affidavit further noted that eavesdropping over Gotti’s home residence’s telephone confirmed Gotti’s routine presence at 97-11 Sutphin Boulevard as a consequence of frequent phone calls there from his wife.
A review of the evidence proffered in support of the warrants and the various amendments and extensions of the initial December 20, 1995 application establishes that probable cause was documented and that Justice Miller was provided a basis to believe that evidence of criminal activity would be intercepted.
Viewed discretely, many of these allegations might appear innocuous or to be insufficient predicates for probable cause. But Justice Miller was not obligated to review them in that manner. The affidavits submitted to her established probable cause to believe in the existence of the Gambino Family, to believe that it engaged in the criminal activities under investigation and to believe that Gotti had a leadership position. Viewing this constellation of evidence in the practical, common sense fashion the law requires, there was justification for her to conclude that seemingly innocuous conversations and disconnected activities reflected on-going organized criminal activity.
Gotti also contends that evidence supplied in support of the various applications was stale. The principal factors in assessing whether supporting facts have become stale are not only their age, but also the nature of the conduct alleged to have violated the law.
See United States v. Gallo,
The December 20, 1995 warrant authorized the interception of conversations concerning gambling on the City Auto telephone. Gotti contends that no amendment was sought by the Government to seek authorization to intercept conversations pertaining to the additional crimes of usury, coercion and grand larceny, and that the January 18,1996 extension and amendment application assumes such authorization has already been given. But these additional crimes were already within the scope of electronic surveillance of other phones and a listening device that were encompassed in the December 20, 1995 warrant. Thus, the Government correctly contended that the January warrant application, by its terms, was an extension and an amendment and that facts contained in the papers incorporated in that application supported a finding of probable cause to extend the interception at City Auto to include the other crimes.
Gotti also notes that there is no judicial response to the Government’s late disclosure of prior eavesdropping of Gotti and McLaughlin in its December 20, 1995 and January 18, 1996 warrant applications. On January 24, 1996 Heintz disclosed this information to Justice Miller through a Supplemental Affidavit. This Supplemental Affidavit was stamped as received, and Justice Miller ultimately ratified and accepted the Government’s good faith effort to comply with the statute by allowing the warrant to remain in force, and indeed, extended it on February 15, 1996. In any event, it is highly unlikely that had this disclosure been made earlier it would have vitiated the Government’s showing of probable cause, and thus this objection does not supply a basis for suppression.
See United States v. Massino,
Moreover, even assuming that the extensive affidavits somehow did not establish probable cause, law enforcement officers relied in good faith on the warrants. Under
United States v. Leon,
Gotti argues that Leon does not apply since the warrant applications were so lacking in indicia of probable cause that reliance upon them was unreasonable. As previously noted, however, the Government’s submissions establish that the warrants, on their faces, were not manifestly deficient, that the agents who procured them did not act in a reckless or dishonest fashion and that the agents’ reliance on them, was reasonable. The motion to suppress based on a lack of probable cause is denied.
Zambouros and Gotti also contend that the Government failed to minimize the interception of communications that did not involve the criminal activity that was the subject of the warrants or to seek an amendment to reach interception of conversations concerning Gotti’s telecommunications business. Zambouros seeks suppression based on these allegations. Gotti’s contention is entirely based on an intercepted conversation in Plomitallo’s car relating to Gotti’s involvement in starting the telecommunications business that is the subject of the Indictment.
Turning first to Zambouros, he was intercepted, not on his line, but on the telephone lines of Gotti and Plomitallo, in the interior of Gotti and Plomitallo’s office and in Plomitallo’s car. Consequently, he lacks standing to make this minimization challenge.
See United States v. Ruggiero,
When Government agents intercept communications pursuant to Title III, “[t]he statute does not forbid the interception of all nonrelevant conversations, but rather instructs the agents to conduct the surveillance in such a manner as to ‘minimize’ the interception of such conversations.”
Scott v. United States,
The determination as to whether minimization should have occurred requires an assessment of the reasonableness of the interceptions in light of the purpose of the wiretap and the totality of the circumstances.
United States v. Napolitano,
Courts have identified several measures which, if taken by the Government, support a finding of compliance with § 2518(5). These include: 1) maintenance of monitoring logs, 2) judicial supervision of the progress of the' surveillance, 3) supervision by the prosecutor, and 4) requiring all monitoring personnel to read the minimization instructions, court orders and applications, and the posting of these documents at the monitoring location.
United States v. Santoro,
Here, the Government has demonstrated, on the strength of the Heintz Affi
The procedures followed by the Government in this investigation constituted a reasonable, good faith attempt to minimize the interception of non-pertinent communications and complied with applicable minimization requirements.
United States v. Hinton,
Zambouros and Gotti also contend that no amendment to Justice Miller’s authorization was sought or obtained to extend to communications concerning telecommunications fraud. 5 This contention is not supported by the record. Title III dictates that an eavesdropping warrant specify the crimes to be evidenced through the conversations to be monitored. See 18 U.S.C. § 2518(4)(c). The Title also provides that the contents of communications which constitute evidence of crimes not specified in the eavesdropping warrant under which interception was effected may not be used as evidence of such crimes in another proceeding, unless the use of such communications is “authorized or approved by a judge of competent jurisdiction where such judge finds on subsequent application that the contents were otherwise intercepted in accordance with the provisions of this chapter.” 18 U.S.C. § 2517(5).
On October 14, 1997, Justice Miller issued an order pursuant to § 2517(5) permitting the disclosure of intercepted communications as evidence of certain federal offenses, including access device fraud. The order was based upon, and incorporated, the application by Heintz, which discussed the interception of the communications constituting access device fraud. The Heintz application stated:
In addition to generating evidence of the state and federal crimes enumerated above, the execution of the incorporated Warrants also produced substantial evidence of a scheme perpetuated by John A. Gotti and others to defraud telecommunications carriers and consumers, in violation of 18 U.S.C. § 1029 (Access Device Fraud). The incorporated Warrants did not name this offense or any analogous state crime. The interception of communications related to this scheme, however, was a consequence of the exercise of authority to intercept related types of communications specified in the Warrants. Upon learning of the existence of Nieodan Telecommunications, a prepaid calling card business owned by Gotti and operated from his office at 97-11 Sutphin Boulevard, Queens, New York, OCTF Special Investigator Ercole Gaudioso learned from other law enforcement officers with experience in the investigation of crimes committed through the marketing ofprepaid calling cards that that industry offers viable opportunities to launder cash proceeds of criminal operations, such as gambling and loansharking, forms of racketeering within the scope of this Warrant. Because the incorporated Warrants authorized the interception of communications evidencing the generation, secreting and disbursement of revenue obtained through the commission of these crimes, executing officers intercepted conversations pertinent to this scheme to determine if Nicodan’s cash revenue was related to the cash-generating forms of racketeering identified in the Warrants.... Finally, it was not until August 1997 that probable cause existed to believe that these communications constituted evidence of a scheme to defraud, our ultimate understanding of the probative value of these communications by the U.S. Secret Service and the tender of business records to OCTF by industry members....
Justice Miller also determined in the October 1997 order that the original orders were applied for in “good faith” and not as a pretext to intercept evidence of unauthorized offenses. Accordingly, a proper amendment was sought and granted by a court of competent jurisdiction.
See In re Grand Jury Subpoena Served on Doe,
III. SUPPRESSION OF FRUITS OF THE BASEMENT SEARCH
Gotti challenges the February 3, 1997 search of the basement in the apartment at 106-13 101st Avenue, Queens, New York. Gotti argues that 1) the probable cause showing supporting the issuance of the first search warrant was tainted through a prior warrantless “sneak and peek” search, and 2) suppression of the fruits of the basement search is required because the search warrant was facially defective and the executing officers grossly exceeded its scope. A hearing was held on these issues on March 11, 1999. For the reasons stated below, Gotti’s motion to suppress is denied. 6
A. “Sneak and Peek” Search
Citing the testimony of OCTF Special Investigator Diego Cruz, a participant in the basement search, at Gotti’s January 29, 1998 detention hearing before Magistrate Judge Mark Fox, Gotti contends that the probable cause showing for the issuance of the February 2, 1997 search warrant for the basement search was tainted by a prior warrantless “sneak and peek” search. In particular, Gotti challenges Cruz’s testimony that he was one of the first agents to arrive at the scene, that when he arrived, the combination lock on the door had been punched out, leaving the door — which was “ordinarily” locked— wide open, and that he and other members of his squad had previously conducted on-site surveillance of the premises.
This testimony, Gotti argues, raises the distinct possibility that the police were responsible for punching out the lock, and that prior to the February 3 execution of the warrant, law enforcement officers 1) secretly broke into the premises, 2) punched out the lock on the basement door, 3) effected an illegal warrantless search, 4) used the resulting observations to bolster a follow-up warrant application and/or 5) planted evidence with an eye to framing Gotti. Gotti points to the substantial sums of cash found on the premises as further evidence that information contained in the warrant application could
Gotti’s main basis for his conclusions is the testimony of Special Investigator Diego Cruz, given at the January 29, 1998 detention hearing, which Gotti claims raises questions as to the occurrence of police misconduct. Gotti, however, has distorted Cruz’s testimony, and has not shown that any false statements were made. A review of the January 29, 1998 transcript, with Cruz’s testimony taken in context, makes clear that Cruz’s recollections of the events surrounding the search were that on the day of the search he entered the hallway and saw that the basement door was closed with a combination lock that was not engaged, and that the other key-style locks were not engaged, allowing the officers to enter the basement without breaking either the locks or the door. But Cruz also testified that neither he nor the officers broke down the door in any way. This testimony raises no inference of police misconduct.
In addition, at the March 11, 1999 hearing, Cruz again credibly testified that when he arrived at the premises on February 3, 1997, the basement door was open, the key locks were not engaged, and the combination lock had been removed. He also noted that once he noticed that the door was open, he paid little attention to the condition of the locks. Cruz additionally testified that prior to that day, he had never been in the basement. Cruz’s testimony, given over the course of two hearings, fails to substantiate Gotti’s claim that a “sneak and peek” search of the premises occurred prior to the issuance of the first search warrant. Accordingly, Gotti’s motion to suppress on these grounds is denied.
B. Validity of the February 2, 1997 Basement Search Warrant
Gotti challenges the validity of the February 2, 1997 warrant that authorized a search the following day of the basement at 106-13 101st Avenue, Queens, New York. Gotti’s challenge comes on several grounds: 1) there was no probable cause for the warrant; 2) the warrant was vague and overbroad; 3) the search exceeded the warrant’s scope; and 4) neither the good faith, the plain view, nor any other exception to the exclusionary rule applies.
1. Probable Cause
In determining whether a warrant was sufficiently supported by probable cause, the reviewing court considers the “totality of the circumstances.”
Illinois v. Gates,
When considered against these presumptions, this Court finds that the February 2, 1997 affidavit submitted by Ercole J. Gaudioso, a Special Investigator in the New York State Organized Crime Task Force, provided probable cause to support the issuance of a search warrant for the basement premises. Gaudioso’s ten-part, eighty-seven page affidavit incorporated a number of prior affidavits and detailed the progress of the joint federal and state investigation into the activities of
Gotti argues that because the searching officers did not find JAG Brokerage’s business records in the basement, there was no probable cause. Because the existence of probable cause is determined on the strength of what is presented to the judicial officer, its existence does not depend on the fruits of the search.
See Ornelas v. United States,
Nor is Gotti’s argument concerning the “staleness” of a February 27, 1996 conversation between McLaughlin and another party regarding the possible entrance into the basement by Con Ed workers and “a marshal” convincing. As the Government points out, reliance on this information suggesting concerns over the security of the basement is not precluded simply because it was a number of months old. The application supporting probable cause articulated facts that showed the existence of an ongoing criminal enterprise. These allegations were some evidence of its continuity.
See, e.g., Rivera v. United States,
Likewise, Gotti’s challenge to the statements of the cooperating witness who was relied upon in the affidavit fails as well. First, Gotti condemns as stale evidence provided by that witness, namely that the witness had engaged in several large-scale loansharking transactions, including one in excess of $150,000 with'Got-ti as creditor, and that the cash that he received from Gotti (which was retrieved by McLaughlin) came from a location in the vicinity of the Bergin Club and “typically exuded a musty stench, as if it had been stored in a damp location, or underground.”
At the March 11, 1999 hearing, Gotti elicited testimony that the witness’ cooperation had likely occurred in 1994, and the information received may have been based on events that occurred several years earlier. Again, however, the confidential informant’s information tended to support the overall picture of an ongoing criminal enterprise, and as such, was not stale.
See Rivera, supra.
Further, when viewed under the totality of the circumstances, it was reasonable for the issuing judge to believe information from the informant that Gotti’s alleged loansharking money, which bore a “musty order,” was likely to have come from the basement of a building that McLaughlin owned.
See Travisano,
Second, to the extent that Gotti challenges the reliability of the confidential informant, Gotti overlooks the fact that in his affidavit in support of his search warrant application, Gaudioso advised Justice Moore of the Bronx Criminal Court, who signed the warrant, as follows:
I am informed by members of federal law enforcement that their independent investigative efforts have failed to corroborate thoroughly all of the information obtained from the cooperating witness. Nevertheless, as detailedthroughout this affidavit, our investigation, through physical surveillance and court-authorized eavesdropping, has identified many of the persons named as Gotti Jr.’s subordinates by the cooperating witness as persons in regular attendance at routine Wednesday-evening meetings, held at the Bergin Hunt and Fish Club in the Ozone Park section of Queens, and elsewhere, by Gotti Jr., typically on Wednesday evenings. The cooperating witness has identified routine meetings at the Bergin Hunt and Fish Club as occasions when he secured from Gotti Jr. large sums of cash in connection with loan sharking transactions.
Def.Exh. E, at 10-11. Much of the informant’s information, therefore, had been corroborated. To the extent that had not occurred, that fact was disclosed to the Justice. Thus, Gotti’s challenge to the informant’s reliability fails.
Were this Court writing on a clean slate, the issue of probable cause to search the basement would be an extremely close question. But given the totality of the circumstances and especially the deference that is to be granted the judicial officer who signed the warrant, this Court finds that the warrant application was supported by probable cause.
2. Overbreadth of Warrant
Gotti contends that both the preamble and the body of the February 2, 1997 basement search warrant were unconstitutionally overbroad, violating the particularity requirement of the Fourth Amendment because the warrant did not enable the executing officers to ascertain and identify with reasonable certainty the part of the basement to be searched or the items they were authorized to seize.
Gotti first argues that the warrant’s preamble was overbroad on its face.
7
Gotti next argues that the warrant’s authorization to search for JAG’s business records was unconstitutionally overbroad. JAG, however, was alleged to be a shell company with no actual office, which served as a conduit for money from a variety of illegal sources and, in effect, functioned purely as an instrumentality of racketeering. Consequently, the judicial concerns expressed in the cases Gotti cites — cases that condemn unfettered rummaging through places of business and indiscriminately seizing all business records — simply do not apply.
See, e.g., Spilotro,
In addition, where a particularly complex scheme is alleged to exist, it may be appropriate to use more generic terms to describe what is to be seized.
See, e.g., United States v. Regan,
Consequently, it is not necessary that specific documents be listed in the warrant, and, in this instance, the validity of the warrant is not affected by the scope of the search.
Regan,
Indeed, our Circuit and other Courts of Appeals have upheld warrants specifying broad categories of documents similar to those identified here.
United States v. Riley,
Finally, Gotti claims that the basement warrant’s authorization to seize United States currency is overly broad. Gotti cites
United States v. One Parcel of Property Located At 18 Perkins Road, Woodbridge, Connecticut,
In this case, Gaudioso’s affidavit established probable cause to believe that Gotti received cash proceeds from gambling, loansharking, and extortion on an ongoing basis, from a variety of sources. In the absence of knowledge of any serial numbers or other specifies regarding the money sought, the warrant’s authorization to seize United States currency was not unconstitutionally overbroad. Gotti’s motion to suppress the fruits of the basement search on the grounds of the warrant’s overbreadth is denied.
3. Search Exceeded Warrant’s Scope
Gotti argues that, when conducted, the basement search constituted a prohibited general search that exceeded the scope of the February 2, 1997 warrant. During that search, officers seized approximately $358,000 in cash, as well as evidence not specified on the face of the warrant, namely, lists of alleged organized crime members, guns and other property.
The February 2, 1997 search warrant authorized investigators to “conduct a search [of the basement premises] and of any container found in such location wherein any of the property ... described below may be found.” As previously noted, the property specified on the face of the warrant encompassed two categories: the business records of JAG brokerage and United States currency. Since the officers conducting the search were authorized to search “any container” in which either documents of any kind or size or cash could be found, they were justified in thoroughly searching the basement including the ceiling, the rafters, a refrigerator located in the basement and the area between a wall and a water heater. Gotti’s contentions that these actions exceeded the warrant’s scope is not persuasive.
In addition, the “plain view” doctrine justified the seizure of the items in addition to those specified on the face of the warrant. The plain view doctrine allows law enforcement officers in certain circumstances to seize evidence without a warrant.
Coolidge v. New Hampshire,
Here, the warrant expressly authorized the search of the basement, including any
Gotti also contests the seizure of his wedding list and alleged organized crime promotion lists, which allegedly contained the names of living and dead members of several crime families. The officer who discovered and seized the evidence, however, had extensive training and experience in the investigation of organized crime. Consequently, the value of those documents, which allegedly established the existence, structure, and protocol of La Cosa Nostra, was immediately clear to him as constituting direct evidence of Enterprise Corruption (the state RICO analogue) committed through the affairs of the Gam-bino Family. The officers’ search and seizure of the basement did not, therefore, exceed the scope of the warrant. Gotti’s motion to suppress on those grounds is denied.
4. Good Faith Exception
In any event, even if the warrants were overbroad or issued without sufficient • probable cause, the good faith exception to the exclusionary rule would prevent suppression. Under
United States v. Leon,
(1) where the issuing magistrate has been knowingly misled, (2) where the issuing magistrate knowingly abandoned his or her judicial role; (3) where the application is so lacking in indicia of probable cause as to render reliance upon it unreasonable; and (4) where the warrant is so facially deficient that reliance upon it is unreasonable.
United States v. Moore,
Gotti has not shown that any of the exceptions to
Leon
apply in this case. First, as previously noted, Gotti’s claim that an initial warrantless “sneak and peek” search misled the judge and tainted the probable cause showing for the February 2, 1997 warrant has not been substantiated. In addition, Gotti suggested at the March 11, 1999 hearing that Gaudioso’s February 2, 1997 warrant affidavit purposely withheld from the judge the dates on which he learned from the confidential informant that money was stored in the
Gaudioso testified, however, that he did not put into the warrant affidavit all the relevant information he had learned in the twenty-eight months he had spent investigating the Gambino Family, that he knew about the doctrine of staleness and that its application varied, depending on the circumstances. Although this is a close question, we find the first exception is, nonetheless, inapplicable.
Second, in view of the content and detail in the warrant applications, Gotti has not demonstrated that the issuing judge wholly abandoned his judicial role. Third, while Gotti challenges the probable cause for the warrant applications, this Court cannot say that the existence of probable cause was an unreasonable conclusion, given the detail in the supporting affidavits. Finally, Gotti has not established that the warrants were so facially deficient that a reasonable officer would have known not to rely on them. Accordingly, the officers were entitled to rely in good faith on that warrant.
For all of the foregoing reasons, Gotti’s motion to suppress the fruits of the basement search is denied.
IV. FEBRUARY 3, 1997 SEARCH OF SUTPHIN BOULEVARD OFFICE
Gotti moves to suppress the fruits of the search at 97-11 Sutphin Boulevard in on the grounds that the warrant was unconstitutionally overbroad on its face. The warrant for this search was issued contemporaneously with the warrant for the basement search and on the same Gaudioso affidavit, and was substantially identical to — though Gotti contends even more expansive than — the warrant for the basement search.
The warrant for the Sutphin Boulevard premises included language seeking proceeds, instrumentalities and evidence identifying the victims and perpetrators of twenty-eight state crimes. The warrant included the same language regarding JAG Brokerage’s business records as the warrant for the basement search. In addition, the warrant sought income tax records for various businesses, documents related to certain construction projects, telephone directories and other documents reflecting the identities of persons who had allegedly committed certain crimes, and any printed or electronic records of specified activities.
For the reasons stated above with respect to the warrant for the basement search, the warrant for the Sutphin Boulevard premises was not unconstitutionally overbroad on its face, and, in any event, is also subject to the Leon exception. Gotti’s motion to suppress the fruits of that search is denied.
V. SUPPRESSION OF FRUITS OF OCTOBER 7, 1997 SEARCH OF NI-CODAN TELECOMMUNICATIONS
Defendants Gotti and Plomitallo contend that the fruits of the October 1997 Nicodan Telecommunications search should be suppressed because (1) the warrant was unconstitutionally overbroad, and (2) the affidavit of Special Agent Perrotta offered to establish probable cause contained false statements. For the reasons that follow, the motion is denied.
The defendants contend that the October 7, 1997 warrant was unconstitutionally overbroad since, by providing no readily ascertainable guidelines as to what items were to be seized, it essentially authorized a general search of the premises.
The warrant stated the following:
YOU ARE HEREBY AUTHORIZED to enter [97-11 Sutphin Boulevard], and to conduct a search thereof and of any person found therein, and to search any container found in such location or on such person wherein any of the property described below may be found; and to seize any such property if found in that location and/or on such person, as follows: (1) property used to commit certain crimes, to wit: Grand Larceny, in violation of Article 155 of the New York State Penal Law; Scheme to Defraud in the First Degree, in violation of section 190.65 of the New York State Penal Law; violations of sections 1804 and 1805 of the New York State Tax Law (relating to the filing of false personal and corporate income tax returns); and violations of sections 1810 of the New York State Tax Law (relating to the failure to pay personal and corporate income tax); (2) property evidencing the commission of those crimes; and (3) property identifying, and tending to identify, the persons who have committed those crimes, and who have been victimized by the commission of those crimes; all such property consisting of the following business and financial records, to the extent that such were produced between April 1996 and the present:
A.Documents related to business transactions in which Nicodan Telecommunications, and/or John A. Gotti, and/or Anthony Plomitallo, and/or Steven Dobies, and/or Delmy Avila, and/or Michael Zambouros, have engaged, as well as all contracts to which Nicodan Telecommunications, and/or John A. Gotti, and/or Anthony Plomitallo, and/or Steven Dobies, and/or Delmy Avila, and/or Michael Zambouros, have been parties, or in connection with which Ni-codan Telecommunications, and/or John A. Gotti, and/or Anthony Plomitallo, and/or Steven Dobies, and/or Delmy Avila, and/or Michael Zambouros, have transacted business, all such transactions and/or contracts relating to the marketing of telephone service access codes, specifically toll-free (or “1[800]” or “1[888]” numbers) and personal identification numbers (or “PINS”), under any of the following brands of pre-paid calling cards and/or involving any of the following firms or persons: Q-Card, MVP Card, Liberty Card, Travel Card, and any other prepaid calling .cards found [in 97-11 Sutphin Boulevard], AT & T, SPRINT, MCI, Tel-Central Communications, H.G. Telecom, Inc., Universal Communications Network, Inc. (“UCN”), Atlas Communications, SMS Q-Card, Inc., Frank Cali, Vincent An-nunziata, Salvatore Scala, Michael DiGiorgio, Steven Chaplain, Anthony Amorous; all such documents to consist of contracts, subcontracts, purchase orders, invoices, and receipts for payment, as well as memoranda of communications .between and/or among any of the aforesaid firms and/or persons;
B. Property evidencing the quantities and monetary values of telephone service access codes marketed under the brand names Q-Card, MVP Card, and Liberty Card, as well as any other prepaid calling cards found in [97-11 Sut-phin Boulevard], and evidencing the identities of actual access codes marketed through any of these brand names, such property to include actual pre-paid calling cards bearing these brand names, as well as contracts, subcontracts, purchase orders, invoices, receipts for payment, and related memo-randa, as pertinent to the marketing of telephone calling services through the distribution of access codes under such brand names, and as pertinent to the manufacturing and printing of such brand names, and as pertinent to the distribution of such brand-name cards;
C. Telephone directories and other memoranda containing the names, addresses, telephone numbers, pager numbers, and other data reflecting the identities of the persons and firms enumerated in paragraph A, above;
D. Records of the proceeds generated by the distribution of the above-named pre-paid calling cards brands, including the financial records of Nicodan Telecommunications, and any other firms or persons if such records reflect the generation of income by the distribution of the pre-paid calling card brands named in paragraph A, above, as follows: cash receipts and disbursements journals;bank statements; records of check deposits and disbursements; account reconciliations; canceled checks; check stubs; and check registers; for all operating, expense and payroll accounts of Nicodan Telecommunications, and/or other firms engaged in the distribution of the above-named pre-paid calling card brands;
E. Records containing information related to Nicodan Telecommunication’s’ liability for and payment of corporate income tax (including documents of the type listed in paragraph D, above), and related to Nicodan Telecommunication’s payment of income, in the forms of salaries, commissions, bonuses, and loans to John A. Gotti, as follows: payroll records; bank statements; records of cash and check deposits and disbursements; account reconciliations;' canceled checks; check stubs; check registers; W-2 forms; 1099 forms; W-4 forms; federal payroll forms 940 and 941; Gotti’s individual and Nicodan’s corporate income tax returns; and withholding schedules.
The warrant contained a finite list of detailed items and was not impermissibly broadened by a catch-all provision authorizing a search for evidence of a commission of any crime.
See George,
The defendants also claim that the Per-rotta Affidavit submitted in support of the warrant only purported to demonstrate probable cause to search in connection with the MVP Card and the Q-Card, but the warrant sought documents relating to “any other prepaid calling cards.” Moreover, the supporting Affidavit mentions numerous calling card names and also supplied information regarding pre-paid calling cards such as Travel Card, World Travel Card and Liberty Card. These averments were sufficient to justify the challenged language in the warrant.
Assuming
arguendo,
the warrant was overbroad, suppression would not be warranted because it was objectively reasonable for the officers to believe the warrant was facially valid.
See United States v. Leon,
The defendants seek a Franks hearing and suppression on the ground that the Affidavit of Special Agent Perrotta (which was incorporated into Special Investigator Gaudioso’s Affidavit in support of the application for the search) contained materially false statements. As stated below, see infra Point VI, to receive a Franks hearing, the defendants must make a substantial preliminary showing of deliberate falsehood or reckless disregard for the truth. The defendants claim that four statements by Agent Perrotta were intentionally false.
First, the defendants claim that Perrot-ta’s interpretation of a conversation between Gotti and Plomitallo was false and “there [was] nothing in the conversation ... that could be construed as suspicious or fraudulent.” Perrotta stated:
In this conversation, Gotti overtly manifested most of the essential elements of the scheme outlined above: the exploitation of extensions of credit; the use of numerous brands of cards; the use of the complex structure of the industry to evade detection for marketing inoperable cards; the intent to market a variety of card brands in succession to one another.
The interpretation was included in the Affidavit following a statement of the text of the conversation between Gotti and Plomi-
In the same conversation between Gotti and Plomitallo, Perrotta attributed, the word “bustin” to Gotti, in the following exchange:
Gotti: I was thinking of [Zambouros] for California, I was thinking of bustin’
Plomitallo: He’s, he’s got distribution there. He’s got people that want cards already.
Gotti: I was thinking about, we make an agreement with him regard the Q card, become, aw, like sort of our main distributor in California.
Later in the Affidavit, Agent Perrotta states that Gotti’s use of the word “bustin” is a reference to defrauding creditors. The defendants claim, however, that the context makes clear that Gotti is referring to “Boston,” not “bustin.” Given this context, it is plausible that Gotti is referring to “bustin.” Plomitallo’s response to Gotti did not ask for any clarification between California or Boston, and Gotti’s second statement refers to making Zambouros a distributor in California, not Boston.
Thirdly, the defendants attack Perrot-ta’s statement that, “It was at this time of this drastic increase in credit to Tel Central that Plomitallo and Zambouros discussed the fact that the name of MVP Card would soon have to be changed.” In a June 20, 1996 conversation, a draft transcript of which was provided to the issuing judge, Plomitallo stated to Zambouros that the name of MVP would have to be changed. Subpoenaed MCI records showed that MCI had extended to Tel Central about $1.7 million in credit in or about May 1996. Gotti contends that Tel Central’s failure to pay MCI does not tend to show that the MVP Card was involved in fraud. Again, Agent Perrotta’s inferences were reasonable given the other facts submitted and the modus operandi of the pre-paid calling card scheme that was under investigation, and are simply not examples of statements made with reckless disregard for their truth.
Finally, the defendants attack Perrotta’s interpretation of a June 20, 1996 conversation which was included in the Affidavit:
Plomitallo: We gotta change the name of the, the MVP Card. Something (I) Cacci said.
Zambouros: Why?
Plomitallo: Something (I) Cacci said.
In a footnote, Perrotta notes, “Organized crime intelligence sources report that Thomas (“Cacci”) Cacciopoli is a made member of the Gambino Family, in the crew headed by John A. Gotti.” The defendants contend, and the Government concedes, that the reference to “Cacci” should have been transcribed as “catchy.” The Government notes, however, and the Court agrees, that Perrotta’s interpretation was reasonable, given the close similarity in the pronunciation of the words, and not a deliberate falsehood.
See United States v. Campino,
Gotti’s dispute with Agent Perrotta’s interpretations of conversations does not warrant either a
Franks
hearing or suppression. The conversations at issue, on occasion, are ambiguous. Reasonable differences over them, however, fall short of establishing deliberate falsehood or reckless disregard for the truth by Perrotta.
See United States v. Fury,
In any event, without the challenged statements, the Affidavit contained a sufficient basis for the issuing justice to conclude there was probable cause to issue the search warrant for Nicodan. Notably, the Affidavit contained a discussion of an alleged tax evasion scheme based on, inter alia, Perrotta’s discussions with OCTF Special Investigator Marie Boss, a forensic accountant, who had reviewed Nicodan’s bank records and noted its modest bank account despite large sales. The Affidavit was also based on Gotti’s sole accountant’s statement that he had never been informed of any income from Gotti’s telecommunications business, and on intercepted conversations. Thus, defendant’s motion for a Franks hearing and to suppress is denied.
VI. SUPPRESSION OF FRUITS OF SEARCH AND WIRETAP APPLICATIONS IDENTIFYING GOTTI AS A MEMBER, CAPTAIN OR BOSS OF THE GAMBINO FAMILY AND/OR INCORPORATING A DECEMBER 12, 1995 PEN REGISTER APPLICATION
Gotti contends that the Title III and search warrant applications targeting him were infected by statements, material to Justice Miller’s determination of probable cause, that were either deliberately false or reckless and were improperly offered to show that he was a “made” member or boss of the Gambino Family. As a consequence, he contends that he is entitled to a
Franks
hearing, and subsequent suppression of any intercepted communications where authorization depended on his identification as acting boss.
See Franks v. Delaware,
Gotti’s motion focuses largely on the inconsistency between information supplied by Organized Crime Task Force (OCTF) Special Investigator Joseph Coffey, and Coffey’s later public, televised statements after he left public -service. Until mid-1996, Agent Coffey was employed as a Special Investigator at the OCTF with the responsibilities for collecting, analyzing and disseminating to OCTF’s various investigative teams intelligence about the membership of organized crime groups. Coffey supplied various information to Heintz, who submitted an affidavit in support of the December 12,1995 pen register, and to Agent Perrotta, who submitted an affidavit in support of the December 20,1995 eavesdropping warrant.
Gotti contends that at the heart of the affidavits of Heintz and Perrotta was the allegation that Gotti was the acting boss, and that this information came from Agent Coffey. Gotti contends that suppression is required because this material information, which was later contradicted by Coffey himself, was critical to Justice Miller’s probable cause determination. Gotti also claims that because these applications were incorporated into later ones, they too were tainted and their fruits must be suppressed.
The Heintz Affidavit in support of the December 12, 1995 pen register and the Perrotta Affidavit in support of the December 20, 1995 eavesdropping warrant both stated:
John Gotti Jr. was identified in testimony in 1992 by Salvatore Gravano, as a caporegime in the Gambino Crime Family. Organized crime intelligencesources, including the FBI, OCTF, and the Manhattan District Attorney’s Office, now identify Gotti Jr. as the Acting Boss of the Family, performing the functions of his incarcerated father. As indicated below, our investigation has gathered evidence of John Gotti' Jr. granting, and denying, permission for Gambino caporegimes to conduct certain criminal transactions in the construction industry. According to Special Investigator Coffey, such power is indicative of that typically wielded by members of the Gambino administration.
(emphasis added).
The Heintz application described Coffey’s areas of expertise and pm-ported to rely on him regarding the general structure and operation of the Gambino Family, the modus operandi of its loansharking and labor racketeering operations and the role of deceased Gambino “capo” Joseph Zíngaro in the construction industry. The information proffered in the Perrotta’s eavesdropping application of December 20, 1995 also relied on Coffey, essentially tracking the same information supplied in the pen register application.
In a television interview on March 12, 1997, Agent Coffey stated in reference to Gotti:
He’s not even made. The kid is one-quarter Jewish, you have to be 100% Italian to be made. He is not even considered to be a made solder in the Gambino family, much less the Boss.
This statement is said to demonstrate the falsity of information relayed by Coffey to Heintz and Perrotta in 1995.
Franks v. Delaware,
where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and ... the allegedly false statement is necessary to the finding of probable cause.
Franks,
Under Franks, three threshold elements are required before a hearing is warranted: (1) that the warrant affidavit contains a false statement, (2) that the statement was knowingly false or made with reckless disregard for the truth, and (3) that the allegedly false statement is necessary to a finding of probable cause. Thus, if the affidavit, when all knowing falsehoods are stricken, still contains sufficient facts to establish probable cause, no Franks hearing is necessary.
Notably absent from Gotti’s motion is any clear or meaningful contradiction by him of the assertions in the Heintz and Perrotta applications that Gotti holds a leadership position in the Gambino Family. In the absence of this offer of proof from Gotti, Franks does not mandate an evidentiary hearing.
Nor has Gotti made a substantial preliminary showing that Coffey’s or the affi-ants’ statements were deliberately false or proffered with a reckless disregard for the truth. Neither application depended on Gotti’s exact position or relied upon Coffey for an express identification of Gotti as a “made” member of the Gambino Family. Coffey’s expertise was used to explain the background and structure of the Gambino Family and certain patterns of activity within
La Cosa Nostra.
Notably, Coffey did not deny the existence of the Gambino Family or
La Cosa Nostra
in the television interview. In any event, the only reliance on Coffey which related directly to Gotti was Coffey’s conclusion that certain con
As the Heintz Affidavit submitted in defense of this motion points out, Agent Coffey shared with investigators information which was incorporated into the Heintz and Perrotta affidavits from a variety of sources identifying Gotti as a leader of the Gambino Family. Thus, Coffey supplied the affiants, not simply with his opinion, but with other information from, for example, the FBI and the Manhattan District Attorney’s Office, not predicated on his credibility, tending to indicate Gotti’s leadership role.
This information included: (1) a copy of the transcript of the testimony of former Gambino Underboss Salvatore (“Sammy the Bull”) Gravano, given during the 1992 federal murder and racketeering trial of John J. Gotti in which Gravano authenticated a Government exhibit which depicted the Gambino Family’s leadership that identified Gotti Jr. as a leader, (2) a Government exhibit depicting the Gambino Family leadership, and (3) an excerpt from OCTF intelligence summary of the Gambi-no Family’s leadership that identified Gotti as Acting Boss.
Even assuming,
arguendo,
that Gotti had made a substantial preliminary showing of deliberate falsehood, a
Franks
hearing is necessary only when probable cause is lacking after the material that is allegedly false is set aside.
Franks,
VII. SUPPRESSION OF MARION PRISON TAPES
Gotti moves to suppress all audio and video surveillance of Gotti’s private visiting room conversations with his father at the federal prison in Marion, Illinois (the “Marion Tapes”) on the grounds that they were obtained without a warrant, in violation of Title III and the Fourth, Fifth, and Eighth Amendments to the United States Constitution. 9
Title III generally forbids the intentional interception of telephonic communications, even communications made from prison, when done without court authorization.
United States v. Amen,
It shall not be unlawful for a person acting under color of law to intercept a wire, oral or electronic communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception.
18 U.S.C. § 2511(2)(c). Under this statute, the consent of only one of the parties to the conversation allows monitoring of that conversation. While Gotti does not dispute the fact that he gave his implied consent to the prison recordings, he argues that the relevant question is the scope of consent, contending that Gotti, Sr. did not consent to the taping of calls as part of the criminal investigation of this case.
In addition, soon after Gotti, Sr. entered the Marion Penitentiary in June 1992, he was given a BP-407 form to sign entitled “Acknowledgements of Inmate.” Item # 3 of that form, “Monitoring of Inmate Telephone Calls,” provides:
The Bureau of Prisons reserves the authority to monitor (this includes recording) conversations on any telephone located within its institutions, said monitoring to be done to preserve the security and orderly management of the institution and to protect the public. An inmate’s use of institutional telephones constitutes consent to this monitoring. A properly placed phone call to an attorney is not monitored.
Gotti, Sr. signed the portion of the form indicating that this notification had been read to him and that he understood that telephone conversations could be monitored and recorded. To that end, there was a sign above each telephone over which visitors would speak to inmates, providing that:
Pursuant to Bureau of Prisons inmate telephone regulations, all conversations on this telephone are subject to monitoring. Your use of this telephone constitutes consent to this monitoring. You must contact your unit team to request unmonitored attorney calls.
Where, as here, the institution has advised inmates that their telephone conversations are subject to monitoring, and has posted a notice to the effect that use of the telephones constitutes consent to the monitoring, “the inmates’ use of the telephones constitutes implied consent to the monitoring within the meaning of Title III.”
United States v. Willoughby,
In Willoughby, two defendants moved to suppress a telephone conversation between Quintín, an inmate at the New York Metropolitan Correctional Center who was awaiting trial, and Willoughby, who at the time of the conversation was outside the Correctional Center. During the challenged conversation, the two discussed preventing testimony by an unnamed person. The Court of Appeals affirmed the District Court’s rejection of the defendants’ Title III arguments, finding that Quintin’s signing of a form stating that he understood that the telephone calls he made from prison could be monitored and recorded constituted Quintin’s express consent to the taping, and that “the consent of Quintín alone, as a party to the conversation, sufficed to avoid the prohibitions of Title III.” Id. at 20. Likewise, in this case, even if Gotti did not consent to the monitoring of his telephone conversations with his father, Gotti, Sr.’s consent suffices to allow use of the recorded prison conversations.
Nor would use of the taped prison conversations violate Gotti’s Fourth, Fifth, or Eighth Amendment rights. With respect to Gotti’s Fourth Amendment right, our Circuit has squarely rejected the argument that his privacy rights were violated, especially given Gotti, Sr.’s express consent to the monitoring and Gotti’s execution of the Notification to Visitors • form.
See, e.g., United States v. Workman,
With respect to 'Gotti’s Fifth Amendment claim, he contends that if the recordings of the telephonic communications were done for investigative purposes, his Fifth Amendment rights were violated because he did not receive
Miranda
warnings. No
Miranda
issues arise, however, unless a person is in custody and is subjected to interrogation by law enforcement.
Illinois v. Perkins,
Finally, Gotti’s Eighth Amendment claim fails as well. There is no authority for the proposition that requiring an inmate to choose between no calls or visits, and monitored and recorded calls and visits amounts to cruel and unusual punishment. Nor can Gotti assert Eighth Amendment rights for his father. Gotti’s motion to suppress the Marion prison tapes is denied, as is his request for a hearing on this issue.
VIII. JURISDICTION OVER FEBRUARY 2, 1997, FEBRUARY 4,1997, AND OCTOBER 7, 1997 SEARCH WARRANTS
Gotti contends that the search warrants issued by New York State court judges on February 2, 1997, February 4, 1997, and October 7, 1997, were governed by Rule 41(a) of the Federal Rules of Criminal Procedure because they were executed during the course of a joint federal and state investigation. Gotti argues that because the state court judges who issued the search warrants sat in Bronx County, part of the Southern District of New York, those judges lacked federal jurisdiction to approve searches in Queens County, located in the Eastern District of New York and, consequently, the warrants in question were void ab initio, and suppression of fruits derived from their execution is required.
Rule 41(a) of the Federal Rules of Criminal Procedure provides:
Upon the request of a federal law enforcement officer or an attorney for the government, a search warrant authorized by this rule may be issued (1) by a federal magistrate judge, or a state court of record within the federal district, for a search of property or for a person within the district ...
Fed.R.Crim.P. 41(a). The text of this Rule limits its application to warrants requested by federal officers. In this case, the February 2 and February 4, 1997 warrants were issued by a state judge based on the affidavit of a state law enforcement officer. The fact that there was, at that point, federal involvement in the investigation does not render Rule 41(a) applicable to those warrants.
See, e.g., United States v. McKeever,
Even if the issuance of the warrants violated Rule 41, however, suppression would not result unless “(1) there was ‘prejudice’ in the sense that the search might not have occurred ... if the Rule had been followed, or (2) there is evidence of intentional and deliberate disregard of a provision in the Rule.”
Burke,
In this case, the fact that a state court judge present in the Southern District of New York issued a warrant to be executed in the Eastern District does not rise to a “quasi-constitutional” violation, and did not prejudice Gotti. As the Government points out, under New York state law, “[a] search warrant issued by ... the New York City criminal court or a superior court judge sitting as a local criminal court may be executed pursuant to its terms anywhere in the state.” New York Criminal Procedure Law § 690.20(1) (McKinney 1995).
There is no question that state law was followed with respect to the warrants. In addition, the Bronx County judge who authorized them was a detached, neutral judicial officer whose name appeared on the face of the warrants. And, as previously discussed, this Court has determined that the warrants in question were validly issued, supported by an ample showing of probable cause, and were not defective on their face or unconstitutionally overbroad. As a result, Gotti was not prejudiced by the issuance of the warrants.
Further, assuming Rule 41 applies, Gotti makes no showing that there was any intentional or deliberate disregard of its provisions. Indeed, the applications for all of the warrants in question indicated that federal and state authorities were cooperating in the investigation of the Gambino Family. Where, as here, there is neither prejudice to a defendant nor intentional or deliberate disregard of the provisions of Rule 41, there is no reason to suppress the evidence seized in reliance on the warrants. Accordingly, Gotti’s motion to exclude the evidence obtained as a result of the search warrants of February 2, 1997, February 4, 1997, and October 7, 1997 is denied.
IX. JURISDICTIONAL PROFFER WITH RESPECT TO TITLE III WARRANTS
Gotti seeks a proffer from the Government establishing that the Title III warrants were issued by a court of competent jurisdiction, i.e., that the monitoring of the conversations, if not the intercepted conversations themselves, occurred within “the jurisdiction of the issuing justicefs].”
People v. DeLaCruz,
In response to Gotti’s request, the Government has submitted an affidavit from Heintz indicating that in the instances of the First, Third, and Fourth Warrants, the issuing justices had geographic jurisdiction over both the targeted facilities and the plants. In the instance of the Second Warrant, the issuing Justice had geographic jurisdiction over the targeted facility. Accordingly, this Court finds that the eavesdropping warrants pertinent to this case were issued by judges of competent jurisdiction.
X. DISMISSAL OF RACKETEERING ACTS
Gotti and Zoilo seek dismissal of certain Racketeering Acts charged in the Indict
It is settled that “to prove a pattern of racketeering activity ... a prosecutor must show that the racketeering predicates are related, and that they amount to or pose a threat of continued criminal activity.”
H.J. Inc. v. Northwestern Bell Tel. Co.,
The Government may prove the vertical relationship by showing either: (1) that the offense related to the activities of the enterprise, or (2) that the defendant was able to commit the offense solely because of his position in the enterprise.
See Minicone,
Count One charges numerous defendants in a racketeering conspiracy, with all defendants alleged to be members or associates of the enterprise—the Gambino Family. The alleged pattern contains a series of acts extending over a significant period of time. The Racketeering Acts include: extortionate schemes at Scores night club, collecting extensions of credit using extortionate means, fraudulent activity pertaining to Zoilo Construction and gambling. The fact that every defendant is not charged in every predicate act is not fatal.
See United States v. Persico,
The pattern of racketeering alleged against Gotti in the Indictment consists of extortionate schemes at Scores lasting over a period of years (Racketeering Acts 1-3), robbery (Racketeering Act 7), loansharking over a number of years (Racketeering Act 10), construction and labor racketeering (Racketeering Acts 33-35), and gambling violations lasting over a period of years (Racketeering Act 40). Gotti is alleged in the Indictment to have had “supervisory power” in the Gambino Family administration.
With respect to Racketeering Act Seven, Gotti is alleged to have robbed by knife and gun point the same drug dealer Zoilo is alleged in Racketeering Act Six to have attempted to collect by extortionate
Racketeering Acts 38 and 39 charge Zoi-lo with mail fraud relating to prevailing wage violations by Zoilo Construction Corp. on two of its construction projects. Gotti and Zoilo are both charged in Racketeering Act 37 with concealing Gotti’s presence on a construction project and failing to pay him the prevailing wage. Since Gotti’s involvement also connects Zollo’s conduct to the other Racketeering Acts charged in the Indictment and Zoilo is alleged to be an “associate” of the Gambi-no Family, and in this role to have “perpetuated fraudulent schemes to further the Gambino Family’s, interest in the construction industry and committed extortion,” the necessary relatedness is established. The Government contends that it is the defendants’ membership in the enterprise that enabled them to commit the predicate offenses which are related and continuous.
The second prong of the
H.J. Inc.
test requires that the racketeering predicates amount to, or pose a threat of, continued criminal activity. The concept of continuity is both closed and open-ended, “referring either to a closed period of repeated conduct, or to past conduct that by its nature projects into the future with a threat of repetition.”
H.J. Inc.,
Here, open-ended continuity is established since the predicate acts or offenses are part of the alleged enterprise’s regular way of doing business, i.e. the Gambino Family’s method of allegedly earning money through crimes such as extortion, loansharking and gambling.
See H.J. Inc.,
Applying the standards outlined above, the Court finds the Racketeering Acts challenged by Gotti and Zoilo meet RICO’s requirements of relatedness and continuity. Their motion to dismiss on this ground is denied.
XI. SEVERANCE OF COUNT ELEVEN
Gotti and Zoilo move for severance of Count Twenty (hereinafter referred to as Count 11 of S9) which charges Zoilo with conspiring to engage in cocaine trafficking, on the grounds that: (1) it is improperly joined under Fed.R.Crim.P.Rule 8, and/or (2) it is highly prejudicial under Rule 14. For the reasons that follow, the motion is denied.
Federal Rule of Criminal Procedure 8(b) provides:
Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.
Fed.ft.Crim.P.Rule 8(b). Where multiple defendants are charged in the same Indictment, Rule 8(b) governs motions for severance.
See United States v. Turoff,
Joinder under Rule 8(b) requires that the acts in which the defendants are alleged to have participated “must be unified by some substantial identity of facts or participants or arise out of a common plan or scheme.”
United States v. Altanasio,
Here, joinder is proper under Rule 8(b) based on the contours of an Indictment that relates to criminal activities by members and associates of the alleged enterprise—the Gambino Family. Although Count Eleven has no parallel Racketeering Act, the conduct underlying the charge is related to the conduct underlying Racketeering Acts Six and Seven.
11
Count Eleven charges that Zoilo, an alleged associate of the enterprise, conspired with others in October 1996 to violate the federal narcotics laws by using approximately $21,000 from Zoilo Construction Corporation to finance the purchase by a cocaine trafficker of approximately one kilogram of cocaine. Racketeering Act Six charges that from October 1996 to May 1998, Zoilo conspired with others to collect by extortionate means the $21,000 borrowed by the cocaine trafficker. Racketeering Act Seven charges Gotti with the October 1996 robbery of this same cocaine trafficker. Thus, the Indictment itself supplies the link between these offenses, as one is alleged to have stemmed from the other.
See Turoff,
Here, Gotti and Zoilo have not made such a showing. Gotti claims that a narcotics charge will “inflame the passions of a jury,” and Zoilo is concerned that the jury might convict him of more serious charges solely because of the evidence of drug dealing. This concern is important but certainly does not present circumstances particularly unusual in criminal proceedings. While the Court is sensitive to it, it does not provide a basis for severance under Rule 14 and can be handled by appropriate limiting instructions.
The fact that the defendants could have varying degrees of exposure or might be confronted with varying amounts of evidence does not require separate trials.
See United States v. Locascio,
Again, to the extent some of the Government’s evidence will not apply to one or more of the defendants, the Court will certainly entertain appropriate limiting jury instructions.
See Zafiro,
XII. SUPPRESSION OF PEN REGISTERS BECAUSE OF AUDIO CAPABILITY
Defendant Zambouros moves for suppression of the fruits of pen registers employed under the authority of orders issued by state justices pursuant to New York State’s pen register statute. The basis for this motion is Zambouros’ attorney’s belief that pen registers that could be used as wiretaps were employed during this investigation. This motion is prens-
Zambouros’ attorney states:
It is believed that during the course of its investigation, agents employed a pen register device which was capable of use as a wiretap.... Your deponent has often been informed that New York State law enforcement uses pen register equipment that is in fact the equivalent of a wiretap device.
Zambouros has not established his standing to challenge the. pen registers, nor does he delineate which pen registers he contends had the audio capability. In any event, his motion fails for another reason.
The Government contends that federal law, not state law, controls the admissibility of the pen registers, while Zambouros contends state law is applicable. Resolution of this particular issue is not necessary because the pen registers at issue met state law requirements. 13 The Government has submitted the Affidavit of OCTF Special Investigator Terrence Williams dated January 7, 1999 which establishes that the pen registers in this case did not have the potential for simple conversion to eavesdropping devices. Further, the Affidavit submitted for the pen register of December 12, 1995 stated that the devices to be used to execute the order would not have audio capacity. Zambou-ros’ motion is denied.
XIII. DISMISSAL OF RACKETEERING ACTS BECAUSE OF DUPLICITY
Zambouros alleges that because Racketeering Acts 10 and 11, and Count 23 (now Racketeering Acts 8 and 9, and Count 13 of S9) refer to fraud involving six specified calling cards, they are duplicitous and do not sufficiently advise him of the nature of the wrongful conduct alleged. He claims that because some of the cards were created before he is alleged to have joined the enterprise, a jury might predicate his guilt on cards with which he was not involved. Consequently, he asserts the Government must select the phone card for which it intends to present proof against him at trial. For the reasons that follow, Zambouros’ motion is denied.
A count is duplicitous if it joins two or more distinct crimes in a single count.
United States v. Aracri,
avoiding the uncertainty of whether a general verdict of guilty conceals a finding of guilty as to one crime and a finding of not guilty as to another, avoiding the risk that the jurors may not have been unanimous as to any one of the crimes charged, assuring the defendant adequate notice, providing the basis for appropriate sentencing, and protecting against double jeopardy in a subsequent prosecution.
Id. at 733 (citation omitted).
Our Circuit has declined to hold that any acts capable of being charged as separate offenses must be alleged in separate counts.
Aracri,
The Government represents that it has apprised Zambouros’ counsel that it is the Government’s position that all of the personal identification numbers relating to the pre-paid cards were unauthorized and obtained with an intent to defraud. Thus, Zambouros is on notice that misconduct is alleged as to all of the cards. Further, the Government represents that it will argue that, as a legal matter, Zambouros is responsible for the misconduct with respect to the pre-paid calling cards charged under the RICO conspiracy and access fraud conspiracy, regardless of when he joined the scheme. Consequently, the contested counts are proper. The motion is denied.
XIY. ORDER STRIKING PREJUDICIAL SURPLUSAGE FROM THE INDICTMENT
Gotti moves pursuant to Fed.R.Crim. P.Rule 7(d), to strike certain sections of the Indictment as prejudicial surplusage. For the reasons that follow, the motion is granted in part and denied in part.
Specifically, Gotti moves to strike paragraphs two and six of the Indictment which generally describe the history, purpose and structure of the Gambino Family. Gotti also moves to strike the words “brutal retribution” contained in paragraph two. Read in its entirety the sentence states, “The Family also promised brutal retribution against those who provided information about its activities to law enforcement, and even those suspected of doing so.” Gotti also moves to strike the words “possessed deadly weapons and threatened and conspired to murder” in paragraph 10(a).
Because the standard for surplus-age is exacting, only rarely is alleged sur-plusage stricken from an indictment.
United States v. Napolitano,
The Government claims that it will present evidence at trial that one of the ways the enterprise maintained power was by meting out “brutal retribution” against informants or threatening to do so. Additionally, the Government claims that it is entitled to prove the means and methods of the enterprise regardless of whether those means and methods have been used in a particular racketeering act. The means and methods section of the Indictment alleges that the members of the enterprise “possessed deadly weapons and threatened and conspired to murder.” The language regarding the possession of deadly weapons is directly relevant to Racketeering Act Seven which charges Gotti with a robbery at gun point. The “conspired to murder” clause, however, is no longer directly related to the Indictment due to pleas by former co-defendants. Because the “conspired to murder” language is prejudicial and inflammatory, the motion to strike it is granted, but not as to other language in the Indictment.
XV. BILL OF PARTICULARS
Pursuant to'Fed.R.Crim.P.Rule 7(f), defendants Gotti and Zambouros move for a Bill of Particulars.
Rule 7(f) ... permits a defendant to seek a bill of particulars in order to identify with sufficient particularity the nature of the charge pending against him, thereby enabling defendant to prepare for trial, to prevent surprise, and to interpose a plea of double jeopardy should he be prosecuted a second time for the same offense.... Generally, if the information sought by defendant is provided in the indictment or in some acceptable alternate form, no bill of particulars is required.
United States v. Bortnovsky,
Whether to grant a bill of particulars rests within the sound discretion of the district court.
Id.
Our Circuit has “consistently sustained indictments which track the language of a statute and, in addition, do little more than state time and place in approximate terms.”
United States v. Salazar,
A bill of particulars is not meant to be a tool to compel disclosure of
In evaluating a request for a bill of particulars, “[t]he important question is whether the information sought is necessary, not whether it is helpful.”
Facciolo,
XVI. DEFENDANT LOIACONO’S MOTION FOR SUPPRESSION OF EVIDENCE SEIZED IN THE EXECUTION OF A SEARCH WARRANT OF HIS PERSON
Dominick Loiacono seeks suppression of evidence seized from his person on September 13, 1995 pursuant to a search warrant. Loiacono contends that the affidavit in support of the search warrant provided no basis for concluding that on that date, he would be in possession of proceeds from usurious transactions or documents reflecting them.
On September 13,1995, upon an application by OCTF Special Investigator David Iosilevich, Justice Vincent F. Naro, New York State Supreme Court, Queens County, issued the search warrant that Loiaco-no challenges. That warrant authorized the search of the defendant’s person and the seizure of certain items allegedly evidencing usury.
The warrant application included two affidavits. The first, signed by Justice Naro on August 16, 1995, sought warrants for other locations associated with the alleged loansharking conspiracy then under investigation. Included in that affidavit were descriptions of the background and targets of the investigation, and summaries and draft transcripts of approximately fifteen intercepted conversations during which loansharking transactions were discussed. Five conversations that allegedly indicated Loiacono’s participation in the loansharking conspiracy were included in the warrant application.
The second affidavit submitted to Justice Naro incorporated the allegations contained in the prior affidavit, described the fruits of searches executed pursuant to the August 16,1995 warrant, and set forth two additional conversations between Loiacono and Gregory DePalma in which a delivery of “meat” was discussed. The affiant
As previously noted, a neutral and detached magistrate’s finding of probable cause is entitled to substantial deference.
See, e.g., United States v. Travisano,
With respect to the September 13, 1995 search warrant, this Court finds that when the totality of circumstances are considered, it was amply supported by probable cause. While Loiacono argues that the conversations offered by the government to show his participation in the alleged loansharking conspiracy were simply conversations about meat, the warrant affidavit explained that the investigators had learned that Loiacono and DePalma relied on code words related to meat when discussing their criminal usury operations.
Moreover, the two supporting affidavits sufficiently detailed the alleged loansharking conspiracy and adequately connected Loiacono to that conspiracy. In addition, the September 12, 1995 affidavit included evidence of conversations that had occurred that day, and allegedly evidenced the collection of illegal debts. Taken in their totality, the September 13, 1995 warrant was amply supported by probable cause. In any event the officers executing the warrant reasonably were entitled to rely on it.
See United States v. Leon,
CONCLUSION
To recapitulate, the following motions are denied: 14 (1) suppression of the fruits of wiretaps based on lack of probable cause, (2) suppression of the wiretap evidence based on the lack of appropriate efforts to minimize or amend, (3) suppression of the fruits of the February 3, 1997 search at 106-13 101st Avenue, Queens, New York, (4) suppression of the fruits of the February 3, 1997 search at 97-11 Sut-phin Boulevard, (5) suppression of the fruits of the October 7, 1997 search at 97-11 Sutphin Boulevard,’ (6) suppression of the fruits of search and wiretap applications incorporating the December 12, 1995 and December 20, 1995 pen and wiretap applications identifying Gotti as a member, captain or boss of the Gambino Family, (7) suppression of the Marion prison tapes, (8) suppression of the fruits of the February 2, 1997, February 4, 1997, and October 7, 1997 searches based on Rule 41(a), (9) dismissal of Racketeering Acts 6, 7, 38 and 39, (10) severance of Count 11 under Rules 8(a), 8(b) and 14, (11) suppression of the fruits of the pen registers based on audio capability, (12) dismissal of Racketeering Acts 8 and 9, and Count 13 based on duplicity, (13) striking paragraphs 2, 6 and “possessed deadly weapons” of paragraph 10(a) of the Indictment, (14) suppression of the fruits of the September 13,1995 search of Loiacono, and (15) request for a bill of particulars. The motion to strike “conspired to murder” in paragraph 10(a) of the Indictment is granted. Additionally, the Court finds that the eavesdropping warrants were issued by judicial officers of competent jurisdiction.
Notes
. Normally the admissibility of evidence in a federal criminal prosecution is governed by federal law.
See, e.g., Preston v. United States,
. In addition to claiming the warrants lacked probable cause, Gotti also contests a Supplemental Affidavit filed with Justice Miller on January 24, 1996, by Assistant District Attorney Vincent G. Heintz (also a Former Special Assistant United States Attorney), stating that the prior applications (December 20, 1995 and January 18, 1996) failed to disclose prior eavesdropping of defendant Gotti and Michael McLaughlin, an alleged associate of Gotti. Heintz requested that this disclosure be received by the court nunc pro tunc as compliance with CPL 700.20. Gotti claims there was no indication of a judicial response to this request.
. The test for probable cause under 18 U.S.C. § 2518 essentially parallels the test to obtain a search warrant.
Wagner,
. The warrant also authorized interception for all communications which "may be cryptic, guarded or coded to disguise their true meanings.”
. In a March 10, 1999 letter to this Court, Zambouros’ attorney for the first time raises the issue not of the existence of an amendment but of its timeliness. As this new allegation was raised on the eve of trial and well after the defendants’ pre-trial motions were due, it will not be addressed. In any event, the Heintz Affidavit submitted in support of the amendment stated that probable cause did not exist until August 1997 and the amendment was sought in October 1997, which seems reasonable. See 18 U.S.C. § 2517(5) (applications are to be made "as soon as practicable”).
. While the Government contends that Gotti has no standing to challenge the basement search, this Court need not decide that claim in light of its denial of Gotti's motion to suppress the fruits of this search.
. The February 2, 1997 warrant provided:
YOU ARE HEREBY AUTHORIZED to enter the above-captioned location, and to conduct a search thereof and of any container found in such location wherein any of the property of the property [sic] described below may be found; and to seize any such property if found in that location, as follows:
(1) property used to commit certain crimes, to wit: Commercial Briber)'; Criminal Restraint of Trade in violation of §§ 340 and 341 of the General Business Law; Bribing a Labor Official; Bribe Receiving by a Labor Official; Criminal Violation of Labor Law § 220 (Failure to Pay Prevailing Wages on Public Contracts); Tampering with Public Records in the First Degree; Falsifying Business Records in the First Degree and Second Degree; Offering a False Instrument for Filing in the First Degree; Perjury in the Second Degree; Making an Apparently False Sworn Statement in the First Degree and Second Degree; Scheme to Defraud in the First Degree; Grand Larceny by False Pretenses; Grand Larceny by False Promise; Criminal Possession of Stolen Property; Promoting Gambling in the First and Second Degrees; Possession of Gambling Records in the First and Second Degrees; Criminal Usury in the First and Second Degrees; Possession of Usurious Loan Records; Grand Larceny by Extortion; Coercion in the First and Second Degrees; attempts to commit those crimes; conspira-cíes to commit those crimes, which conspiracies include the commission of overt acts within the geographic jurisdiction of this CourL; and Enterprise Corruption, committed by certain persons through patterns of criminal activity comprising acts constituting violations of those of the crimes enumerated above which are designated as "criminal acts” in Penal Law § 460.10(l)(d), in connection with such persons’ ongoing employment by and in association with an ongoing criminal enterprise, namely the Gambino Crime Family, which patterns of criminal activity include the commission of predicate acts within the geographic jurisdiction of this Court; (2) property evidencing the commission of those crimes; and (3) property identifying, and tending to identify, the persons who have committed those crimes, and who have been victimized by the commission of those crimes; all such property consisting of the following:
—The business records of JAG Brokerage, including: financial ledgers; documents related to contracts to which JAG Brokerage has been a party, or in connection with which JAG Brokerage has transacted business; all payroll records, including bank statements, records of cash and check deposits and disbursements, account reconciliations, can-celled checks, check stubs, and check registers, for all payroll accounts, and for other accounts used to pay employees' income taxes; payroll ledgers, timecards; tax forms related to the salaries, and benefits paid by JAG
—United States currency.
. In the March 11, 1999 hearing, Gotti specifically sought suppression of the .32 caliber semiautomatic handgun with silencer that was found in the rafters of the basement. In particular, Gotti questioned the actions of Officer Timothy Betlewicz, who found the gun, who could not recall the details of the briefing prior to the execution of the search warrant, and who testified to his belief that the searching officers were looking to recover any evidence that they could find. Investigator Gau-dioso, however, testified that before the search warrants were executed, he met with all of the searching officers and their team leaders, reviewed the warrants with them, and supplied each team with a number of copies of the warrant. In any event, the search warrant authorized the opening of containers that could hold items listed in the warrant. Thus, the search into the rafters— and the opening of the bag that held the gun with the silencer — was within the scope of the warrant.
. While Gotti claims that use of the Marion tapes violates First Amendment rights as well, his brief makes clear that he is contending that his
father's
First and Fifth Amendment rights of association are being violated. Got-ti, however, has no standing to challenge violations of his father’s constitutional rights.
See, e.g., Rakas v. Illinois,
.The Courts of Appeals disagree over whether Rule 8(b) severance motions should be decided solely on the basis of the allegations in the Indictment or, instead, may be decided on the basis of pretrial proffers by the Government.
Compare, e.g., United States v. Marzano,
. Zoilo and Gotti's motions to dismiss Racketeering Acts Six and Seven have been denied. See supra, Point X.
. The Government contends that although Zoilo moves for severance of Count Eleven pursuant to Rule 8(b), the proper Rule for his motion is 8(a).
United States v. Biaggi,
. The Court notes that federal law generally governs the admissibility of evidence in a federal prosecution,
see supra
footnote 1, and as such Title III does not require law enforcement officials to obtain authorization for the installation of pen registers.
See Smith
v.
Maryland,
. All references to "Indictment” are to S9.