420 U.S. 671 (1974)
The United States charged Gary Feola and eighteen co-defendants in a first superseding indictment filed on March 27, 1986, with having operated a cocaine and marijuana trafficking ring, centered in Westchester County and Manhattan, which distributed narcotics during 1985.1 Count One charged nineteen defendants with conspiracy to distribute cocaine between January 1, 1985 and November 26, 1985, in violation of 21 U.S.C. § 846.2 Count Two charged four defendants with conspiracy to distribute marijuana during the same period.3 Additional counts charged possession with intent to distribute, firearms possession by a convicted felon, and forfeiture of real and personal property.4
Several principal defendants had prior encounters with the criminal justice system. A 1978 investigation led to John Farese's conviction for selling cocaine, and he implicated Gary Feola. Feola was arrested in a 1981 investigation of John Cercena and convicted in 1982 of conspiracy in the fourth degree in connection with an attempted sale of three kilograms of cocaine.5 The 1985 investigation began with pen register surveillance of Farese's telephone in April-May and June-August 1985, which revealed numerous calls to individuals with known criminal records or suspected of dealing in narcotics, including 64 calls to Cercena's phone and 47 to Feola's.6
Detective Robert Magaletti submitted affidavits relying on statements from named informants Dominic Carbone and Vincent James Tarantelli, as well as three confidential informants. CI #1 claimed to have lived in Farese's house for several years between 1977 and 1984, worked as a mule transporting cocaine from Florida to Westchester County, and provided details of transactions involving Feola, Farese, and Cercena.7 On the basis of these affidavits, New York Supreme Court Justice Dachenhausen issued Order A on August 14, 1985, authorizing interception of communications over John Farese's telephone.8
Wiretap interceptions continued until November 26, 1985. On November 21 and 22, 1985, search warrants were executed at fifteen residences.9 The searches uncovered nearly two kilograms of high purity cocaine, 48.2 grams of marijuana, and $82,730 in currency from Noemi Fernandez's apartment in New Jersey; $35,000 in currency, 4.3 grams of cocaine, and explicit drug records from Gary Feola's apartment at 300 East 54th Street in Manhattan; three firearms and narcotics paraphernalia from Steven Gallo's residences; $119,002 in currency and cocaine from Edmund Rosner's apartment; and similar quantities of drugs, cash, diluents, and records from the homes of other defendants including Daniel Wall, Ralph Feola Sr., Ira Neuringer, John Cercena, Arthur McGuire, and John Farese.10
Defendants were arrested on November 26, 1985. They filed numerous pre-trial motions that became fully submitted on December 23, 1986, including motions to suppress the fruits of the eleven eavesdropping orders on grounds of lack of probable cause, staleness, informant unreliability, inadequate minimization, improper sealing, and other procedural defects; motions to suppress physical evidence seized in the searches; motions for severance of counts and defendants; motions for a Franks hearing; and extensive discovery requests.11 The court issued its memorandum and order resolving the motions on January 7, 1987.12
Whether the initial eavesdropping order and subsequent orders were supported by probable cause?13
Probable cause for a wiretap order exists when the facts and circumstances within the affiant's knowledge, and of which he has reasonably trustworthy information, are sufficient to warrant a man of reasonable caution to believe that an offense is being committed, has been committed, or is about to be committed.14 The affidavit must be read as a whole and in light of common sense, taking into account the totality of the circumstances under the Gates test rather than the two-pronged Aguilar-Spinelli test.15
Yes. Detective Magaletti's first affidavit for Order A recited pen register surveillance showing thirty percent of Farese's outgoing calls to persons with known criminal records or suspected narcotics involvement, including sixty-four calls to Cercena and forty-seven to Feola.16 The affidavit also contained statements from named informants Carbone and Tarantelli detailing their direct involvement in the organization's activities and from CI #1 who claimed personal knowledge as a mule transporting cocaine from Florida suppliers to Feola, Farese, and Cercena for distribution in Westchester.17 The information was not stale because the affidavits described a single ongoing conspiracy extending back to the late 1970s with continuous activity through 1985.18
Subsequent orders were supported by the same affidavits plus additional interceptions and surveillance showing meetings and coded conversations among the same participants. The court applied the totality of the circumstances test and found the combination of pen register data, informant statements against penal interest, and CI #1's corroborated personal knowledge sufficient to establish probable cause for Order A and all later orders.19
The eavesdropping orders were supported by probable cause.20
Whether the wiretap interceptions satisfied statutory minimization requirements?21
Minimization requires that interception be conducted in such a way as to minimize the interception of communications not otherwise subject to eavesdropping, with the agents making reasonable efforts judged by their actions rather than motives, taking into account the scope of the conspiracy, the use of the telephone, and the stage of the investigation.22
Yes. The eavesdropping warrants expressly required minimization and listed the persons and topics to be monitored.23 The logs showed that agents turned off the machine upon determining non-pertinence, with numerous notations of NPMTO for non-pertinent machine turned off, and the Harkins log documented minimization briefings and judicial supervision. The investigation targeted a wide-ranging conspiracy involving many participants and coded language, making complete minimization of every call impossible at the outset.24
The court reviewed the logs and found abundant evidence of compliance with both federal and New York minimization standards, rejecting conclusory allegations that lacked specific examples of unminimized pertinent calls.25
The wiretap interceptions satisfied statutory minimization requirements.26
Whether the intercepted communications were properly sealed under federal and state law?27
Under 18 U.S.C. § 2518(8)(a), recordings must be immediately made available to the issuing judge and sealed under his directions upon expiration of the order or extensions.28 Applications and orders must be sealed under § 2518(8)(b).
The intercepted communications were properly sealed under federal and state law.31
Whether the search warrants were supported by probable cause?32
A search warrant is supported by probable cause when the affidavit, read as a whole under the totality of the circumstances, provides a fair probability that contraband or evidence of a crime will be found in a particular place.33 The good-faith exception of Leon applies when officers rely on a warrant issued by a neutral magistrate unless the affidavit is so lacking in indicia of probable cause that reliance is entirely unreasonable.34
Yes. The search warrant affidavits incorporated the wiretap evidence already found sufficient for probable cause, plus recent interceptions showing ongoing distribution activity through November 1985.35 The court held that the ongoing nature of the conspiracy rendered any time lag immaterial and that the Leon good-faith exception independently supported the warrants because the officers consulted prosecutors and obtained judicial approval from neutral magistrates.36 Even if the wiretap evidence were excluded, the remaining facts would still support probable cause, but the court found no poisonous tree because the wiretaps were valid.37
The search warrants were supported by probable cause.38
Whether defendants have standing to challenge the searches of the fifteen residences?39
No. Defendant Gumpricht conceded that the narcotics records seized were not in his apartment but in Wall's apartment.42 He failed to assert any legitimate expectation of privacy in the Wall premises or any property interest in the seized items.43 Other defendants whose residences were searched, including McGuire, Wall, Cercena, Farese, Fernandez, Tarantelli, and Gallo, demonstrated standing through their property interests in the searched premises.44
Gumpricht lacked standing to challenge the search of Wall's apartment; the remaining defendants who resided at the searched premises had standing.45
Whether the firearms counts against one defendant should be severed from the conspiracy counts?46
No. The firearms were found during the same search that uncovered drugs and paraphernalia at Gallo's residence, creating a sufficient factual nexus under Rule 8.49 Evidence of firearms possession is admissible in narcotics trials because substantial dealers keep firearms as tools of the trade.50 Any potential prejudice from Gallo's prior conviction could be cured by limiting instructions or stipulation, and defendants failed to show substantial prejudice requiring severance under Rule 14.51
The firearms counts were properly joined and severance was not required.52
Whether the cocaine conspiracy count should be severed from the marijuana conspiracy count?53
No. The cocaine and marijuana conspiracies overlapped in time, involved overlapping defendants including key organizers Feola and Farese, and shared the same proof of the overall narcotics trafficking organization.56 The conspiracy count provided the common link, and defendants who participated in both conspiracies could show no prejudice while those charged in only one count failed to demonstrate substantial spillover prejudice that limiting instructions could not cure.57
The conspiracy counts were properly joined and severance was not required.58
Whether a Franks hearing is required to challenge the affiant's statements in the wiretap applications?59
A Franks hearing is required only when the defendant makes a substantial preliminary showing that the affiant deliberately or recklessly included false statements or omitted material facts. The false statements or omissions must be necessary to the finding of probable cause.60 Allegations of negligence or innocent mistake are insufficient.61 Only the affiant's conduct, not that of nongovernmental informants, may be impeached.62
No. Rosner's allegations that CI #1 was unreliable or that Magaletti misinterpreted code words failed to show that Magaletti himself knowingly or recklessly made false statements.63 The submissions concerning CI #1's personal character did not establish that Magaletti knew or should have known the information was false.64 Alleged misinterpretations of conversations were not shown to be deliberate falsehoods, and even if some interpretations were mistaken the remaining content of the affidavits still supported probable cause.65 The court denied the Franks hearing because the threshold showing was not met.66
A Franks hearing was not required.67
Whether a bill of particulars should be ordered?68
A bill of particulars is appropriate when the indictment is so general that it does not advise the defendant of the specific acts charged, to minimize surprise and enable preparation of the defense, but it is not a device to compel disclosure of the government's evidence or legal theory.69
Yes. The court ordered the government to provide the names of all claimed co-conspirators, whether any person present at overt acts was a government agent, the names of persons present at overt and substantive acts, the dates defendants joined and ended the conspiracy, the quantity of cocaine involved, the amounts of money exchanged, and specific particulars regarding the listed overt acts and defendants' roles.70 Broader requests for all evidentiary details and the government's theory were denied as exceeding the proper scope of a bill of particulars.71
A bill of particulars was ordered in part with specific items required and other requests denied.72
Whether discovery requests, including Brady material and witness lists, should be granted?73
The government must disclose exculpatory evidence material to guilt or punishment under Brady, including impeachment information affecting witness credibility.74 Rule 16 permits discovery of the defendant's own statements, documents and tangible objects material to the defense or intended for use in the government's case in chief, and results of examinations and tests.75 The government need not disclose its witness list absent particularized need, and Rule 16(a)(2) prohibits discovery of internal government documents and witness statements except as provided in the Jencks Act.76
Yes. The court ordered disclosure of all Brady exculpatory and impeachment material thirty days before trial as a continuing duty, the defendant's own statements, tangible objects and documents material to the defense or intended for the government's case in chief, results of scientific tests, and preservation of notes.77 Requests for the government's witness list, informant identities, Jencks Act material before trial, and internal investigative files were denied because defendants failed to show particularized need outweighing the risks in a narcotics case and because such disclosure is prohibited by Rule 16(a)(2) and the Jencks Act until after direct testimony.78
Discovery was granted in part for Brady material, the defendant's own statements, and tangible objects, and denied in part for witness lists and internal government documents.79