LaMantia

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNITED STATES OF AMERICA	)
	)
	)
v	)	No. 93 CR 523
	)	Judge Wayne R. Andersen
	)
JOSEPH FRANK LaMANTIA, et al.	)

GOVERNMENT'S CONSOLIDATED RESPONSE IN OPPOSITION TO DEFENDANTS,MOTION TO SUPPRESS EVIDENCE, PROVIDE FOR A MINIMIZATION HEARING, AND DISMISS THE INDICTMENT

The UNITED STATES OF AMERICA, by its attorney, JAMES B. BURNS, the United States Attorney for the Northern District of Illinois, moves this Court to deny defendant LaMantia's motion to suppress evidence obtained directly and derivatively under authority of properly issued and narrowly utilized covert interception orders; deny his motion for a minimization hearing pursuant to 18 U.S.C.§ 2518 (1996); and deny his motion to dismiss the indictment. The government further asks that defendants Scalfaro, Gallo and Levato's individual motions be similarly denied.

TABLE OF CONTENTS
I.	OVERVIEW	3
II.	STANDING OF GALLO, SCALFARO AND LEVATO/LOCAL CRIMINAL RULE 205(c) . . . .	6
A.	Joseph Gallo	6
B.	Gino Levato and Dominic Scalfaro	8
III.	JOSEPH FRANK LAMANTIA	8
A.	The Government had Probable Cause to Believe that the Defendant LaMantia was Engaged in Criminal	9

	Activities
	1. Standard of Review	9
	2. Principles of Law	10
	3. Summary and Background	14
	a. Background of the Interceptees/Leadership of the "26th Street Crew"	16
	b. Witnesses and Informants	17
	c. Information on the Old Neighborhood Italian American Club	28
	d. Pen Register/Trap Information	32
	e. Physical Surveillance	34
	f. Intercepted Conversations	35
	4. There is a Substantial Basis to Conclude that Probable Cause Existed for the September 2,1987,Order	35
	5. There is a Substantial Basis to Conclude that probable Cause Existed for the November 4,1987, Order	44
	a. Intercepted Wire Communications	44
	b. Surveillance	46
	c. Meetings at the "Club"	46
	d. Argument	48
B.	The Government Properly Demonstrated to the Authorizing Judge that Covert Electronic Surveillance was Necessary	50
	1. Standard of Review	50
	2. Background	50
	3. Adequacy of the Government's Showing of Necessity	63
C.	The Government Properly Minimized All Clandestine Wire and Oral Interceptions as Required both by the Authorizing Order and Title 18, United States Code,

		Section 2518....	78
		1. The Government has Established its Prima Facie Case of Reasonable Conduct	80
		a. The Nature and Scope of the Criminal Enterprise	82
		b. The Expected Contents of Particular Calls	85
		c. Continuing Judicial Oversight	91
		2. The Government Properly Minimized Intercepted Communications Pursuant to all Authorization Orders	93
		3. The Government Properly Intercepted the Defendant's Communications at Gino's Tavern	101
IV.	CONCLUSION		103

I. OVERVIEW

On, July 3, 1996, defendant Joseph Frank LaMantia filed a motion to suppress evidence and dismiss the indictment. The motion was filed seeking suppression of evidence obtained as a result of several separate court ordered interceptions of wire and oral communications. In his motion to suppress evidence and the attached memorandum of law, defendant LaMantia raises five allegations: (1) the affidavit for the interception of wire communications at the Old Neighborhood Italian American Club ("Club") failed to establish probable cause; (2) the affidavit for the initial interception of oral communications at the Old Neighborhood Italian American Club failed to establish probable cause; (3) the microphone interception at the Old Neighborhood Italian American Club lasted longer than necessary to achieve the authorized objective in violation of 18 U.S.C. section 2518 (5);

(4) interception at the Old Neighborhood Italian American Club and Gino's Tavern (with respect to Joseph Frank LaMantia)¹ violated minimization requirements, and (5) suppression is required due to lack of necessity for interception²

On July 16, 1996, Joseph Gallo and Gino Levato filed separate motions to join defendant LaMantia's motion to suppress evidence and dismiss the indictment³. In defendant Levato's three

^{1 Defendant LaMantia's motion specifically states

that this argument is raised with respect to LaMantia only.

^{2 Defendant LaMantia's motion does not challenge the

findings of probable cause for the December 21, 1987, or February 5, 1988, affidavits for

extensions on the November 4, 1987, Old Neighborhood Italian American Club oral

communications interception order. Furthermore, other than a general argument attacking

the finding of necessity for the eleven interception orders and extensions, no arguments

are made against the court ordered wire communications interceptions conducted at Sea Hoy

Seafoods. With respect to the interceptions conducted at Gino's Tavern, the only other

argument raised is that with respect to defendant LaMantia, proper minimization was not

carried out. The government submits that any other issues related to the court ordered

interceptions conducted at the Old Neighborhood Italian American Club, Sea Hoy Seafoods

and Gino's Tavern that were not argued in defendant LaMantia's motion have been waived

under 18 U.S.C. 2518 Section (l0)(a) which states that all motions to suppress shall be

made before trial, hearing or proceeding unless there was no opportunity to make such a

motion or the person was not aware of the grounds of the motion. Furthermore, the

government submits that those issues not raised in defendant LaMantia's motion are waived

under Federal Rules of Criminal Procedure 12 (f) which states that failure by a party to

raise defenses or objections or to make requests which must be made prior to trial. Shall

constitute a waiver thereof. See e.g. United States v. Morales. 964 F.2d 677, 680

(7th Cir. 1992); United States v. DeLuna ,616 F.Supp. 534, 536 (W.D. Mo. 1985).

^{3 The government had provided all information

related to the Title III orders to counsel for Gallo, Levato, LaMantia and Scalfaro in the

Fall of 1993. The government met with defense counsel for all the defendants in this

matter on August 10, 1993 and provided to them all applications, affidavits, interception

orders, service provider orders, reports to the Court, motion to seal recordings and logs,

sealing orders, motions to delay service of inventory and related orders, daily

interception logs, petition for authority to remove oral interception devices and related

order, motion for service of inventory and related orders, all dealing with the

interceptions for the Old Neighborhood Italian American Club, Sea Hoy Seafoods and Gino's

Tavern. These were the first documents provided in the case and totaled 7,154 pages in

number. By December 17, 1993 the counsel for the various defendants had been provided

rough transcripts or summaries of all pertinent conversations. Defense counsel were

provided tape cassettes of all pertinent conversations. Some were provided on August 23,

1993, and most of the remaining tapes were provided on October 8, 1993.

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page motion to join, the only discernible argument made is

that the government failed to attempt minimization and sought interception of a public

telephone. Defendant Levato cites no authority, lists no facts which are specific to his

case and refers to no language in the applications to support his argument. In defendant

Gallo's three page motion to join, Gallo raises three allegations for suppression:

microphone coverage lasted longer than necessary to achieve authorized objectives, agents

failed to minimize oral communications, and the affidavits failed to establish necessity.

Defendant Gallo cites no authority except the statute itself, nor any language in the

applications to support his allegations and does not list any facts which are specific to

his case. Also, he fails to specify which affidavits he is challenging.

On July 25, 1996, defendant Scalfaro filed a one page

motion to join defendant LaMantia's motion to suppress evidence and to dismiss the

indictment. In his motion defendant Scalfaro raises no arguments, cites no authority or

language in the applications and lists no facts specific to his case.

Each of the above defendants' motions to join for

suppression of evidence and dismissal relies entirely on the issues raised and arguments

made in defendant LaMantia's motion. For the reasons set forth below, this Court should

deny all

________________________

⁴ No oral communications

of defendant Gallo were intercepted at Gino's Tavern. Only defendant Gallo's wire

communications were intercepted and those wire communications were all criminal in

nature. Thus, defendant Gallo's challenge to "microphone coverage" and an

allegation of the agents failing to minimize "oral communications" is misplaced

as none of defendant Gallo's oral communications were ever intercepted

5

the defendants' motions.

II. STANDING OF

GALLO, SCALFARO AND LEVATO/LOCAL CRIMINAL RULE

    205(c)

A. Joseph Gallo.

Defendant Gallo was not a named party in the applications

for interceptions at the "Club", Gino's Tavern or Sea Hoy Seafood. He was not a

participant in any conversation recorded as a result of the court ordered interceptions

conducted at the "Club" or at SeaHoy. Thus, defendant Gallo is not an

"aggrieved party" as defined by 18 U.S.C. Section 2510(11) for purposes relating

to interceptions conducted at the "Club" or Sea Hoy Seafoods. As a result, he

lacks standing to join defendant LaMantia's arguments concerning court ordered

interceptions at the "Club" and the necessity for the interceptions conducted at

Sea Hoy Seafoods⁵.

Although defendant Gallo does have standing to argue

issues related to the wire interceptions conducted at Gino's Tavern, most of his motion

deals with a challenge to the interception of oral communications to which he was not a

participant. In addition, he fails to sufficiently raise such arguments as required by

Local Criminal Rule 2.05(c) which requires the proponent of a contested motion to submit

an accompanying brief in support of the motion, together with citations of authority. His

motion to join contains blanket and conclusory allegations

________________

^{⁵ Lamantia's arguments 1,2,3,4 (b), and 5 as it relates to the Club and

Sea Hoy Seafoods}

6

and does not list any facts specific enough to allow a

response. Furthermore, defendant LaMantia's motion to suppress cannot satisfy the

requirements of Local Criminal Rule 2.05 for defendant Gallo because the cited facts and

argument related to interceptions conducted at Gino's Tavern pertain specifically to

defendant LaMantia and no one else. See e.g. United States v McCarroll. 1996 WL

99442, *3 (N.D. Ill. March 5, 1996); see also United States v. Reynolds. 1988 WL

31562 *3 n.2 ( N.D. Ill. 1988) As the court stated in Reynolds:

The defendant is responsible for presenting a complete

argument. Local Criminal Rule 2.05(c) reflects this responsibility. . . . The Court will

not undertake the defendant's obligation to articulate such an argument.

Thus, defendant Gallo's motion to join should be denied.

B. Gino

Levato and Dominic Scalfaro

The motions to join filed by both defendants' Levato and

Scalfaro suffer from the same infirmities as defendant Gallo's. Neither defendant had

conversations recorded as a result of the interception orders for the "Club" and

both defendants were recorded as a result of the Sea Hoy Seafood interception orders in

the same minimal fashion an Gallo⁶. As a result, neither have standing to join

LaMantia's arguments against the interceptions conducted at the "Club" and Sea

Hoy Seafood.

Although defendants Scalfaro and Levato have standing to

_______________

^{6 Their participation consisted of answering calls that came into Gino's tavern which

emanated from Sea Hoy Seafoods. The caller from Sea Hoy Seafoods would then ask to speak

with some specofice individual and they would hand the telephone to that individual.}

7

challenge the interceptions conducted at Gino's Tavern,

neither defendant Scalfaro's one page motion nor defendant Levato's three page motion list

facts specific to their cases, which is necessary to support a valid motion. Furthermore,

joinder with defendant LaMantia's motion would violate Local Criminal Rule 2.05(c)because

defendant LaMantia's motion contain facts and arguments related to the interception

conducted at Gino's Tavern that are specific only to LaMantia.

III. JOSEPH FRANK LAMANTIA

A. The Government had Probable Cause to Believe that the Defendant

LaMantia was Engaged in Criminal Activities

1. Standard of Review:

The burden of proof is on the defendant to establish the

illegality of the wiretaps by a preponderance of the evidence. United States v. Van

Horn. 579 F.Supp. 804, 811 (D. Neb.1984) (citing Nardone v. United States, 308 U.S.

388, 341); see also, United States v. Evans, 572 F.2d 455, 486 (5th Cir.), cert

denied, 439 U.S. 870, 99 S.Ct. 200, 58 L.Ed.2d 182 (1978) (The burden is on the movant to

make specific factual allegations of illegality, to produce evidence, and to persuade the

Court that the evidence should be suppressed). Affidavits in support of electronic orders

are to be judged by the same standards as conventional search warrants; the statutory

probable cause standards set out in Title III are co-extensive with the constitutional

requirements embodied in the Fourth Amendment. United States v. Macklin. 902

F.2d 1320, 1324 (8th Cir.1990),

8

cert. denied, 498 U.S. 1031, 111 S.Ct. 689, 112 L.Ed.2d

680 (1991). It is well established that the affidavit used to support the issuance of the

wiretap order is presumed valid. Van Horn, 579 F. Supp. at 811 (citing Franks v.

Delaware. 438 U.S. 154, 171, 98 S.Ct. 2674, 2684, 57 L.Ed.2d 667 (1978)). The question

presented on review of an issuing judicial officer's determination is not whether the

reviewing court would have issued the warrant based on the affidavit as presented, but

whether the court which did issue the warrant had a substantial basis for concluding that

probable cause existed. Illinois v. Gates 462 U.S. 213, at 238-239, 103 S.Ct. 2317,

2332 (1983). A reviewing court does not conduct a de nova review of the issuing judge's

determination, but must instead afford it great deference. Id. at 236, 103 S.Ct. at 2331

See Macklin, 902 F.2d at 1324 (8th Cir.1990); Woods v. United States, 498

U.S. 1031, 11 S.Ct. 689, 112 L.Ed.2d 680 (1991). As the Court explained in Gates:

We have repeatedly said that after-the-fact scrutiny by

courts of the sufficiency of an affidavit should not take the form of de nova review. A

magistrate's determination of probable cause should be paid great deference by reviewing

courts." [Spinelli v. United States, 393 U.S. 410,419, 89 S.Ct. 584, 590, 21 L.Ed:2d

637 (1969)] " a grudging or negative attitude toward warrants," [United States

v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 745-46, 13 L.Ed.2d 684 1965).,] is

inconsistent with the Fourth Amendment's strong preference for searches conducted pursuant

to a warrant; courts should not invalidate warrants by interpreting affidavits in a

hypertechnical, rather than a commonsense, manner." Id., at 109, 85 S.Ct. at 746.

Gates, 462 U.S. at 236, 103 S.Ct. at 2331.

9

2. Principles of Law

Probable cause is a reasonable probability of criminal

activity; it does not require certainty or a prima facie showing of criminal activity. Spinelli

v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 590, 21 L.Ed. 2d 637 (1969); United

States v. Giacalone, 853 F.2d 470, 4478 (6th Cir. 1988); United States V. Dorfman,

542 F.Supp. 345, 359. Even if there is a possibly innocent explanation, as long as there

is a reasonable probability that there is criminal activity afoot, despite the presence of

other possibilities, probable cause is present. See. e.g.. United States v. Davis.

882 F.2d 1334, 4343 (8th Cir. 1989); United States v. Anton, 633 F.2d 1252, 1254

(7th Cir. 1980), cert. denied, 449 U.S. 1084, 101 S.Ct. 870, 66 L.Ed. 808 (1981); Dorfman,

542 F. Supp. at 359.

Probable cause is not a concept that can be applied

swiftly and technically according to set factual guidelines. Rather it is "a fluid

concept--turning on the assessment of probabilities in particular factual contexts--not

readily, or even usefully, reduced to a neat set of legal rules." Gates, 462

U.s. at 232; United States v. Mancari, 663 F.Supp. 1343, 1354(N.D.Ill. 1987).

Therefore, probable cause must be based on the totality of the circumstances. Gates,

462 U.S. at 230-32; Mancari, 663 F. Supp. at 1354; United States v. Orozco.

630 F.Supp. 1418, 1523 (S.D. Cal. 1986).Title 18 U.S.C. Section 2518 codified the probable

cause requirement for interceptions. The statute requires the

10

government to meet a three-tiered probable cause standard.

Under the statute, the government must show that:

(a)there is probable cause for belief that an individual

is committing, has committed, or is about to commit a particular offense enumerated in

Section 2516 of this chapter; (b) there is probable cause for belief that particular

communications concerning that offense will be obtained through such interception;

****************************************

(d) there is probable cause for belief that the facilities

from which, or place where communications are to be intercepted are being used , or are

about to be used, in connection with the commission of such offense, or are leased to,

listed in the name of, or commonly used by such person.

18 U.S.C. Section 2518(3), (a), (b), (d), (1976).

An affidavit filed in support of a wiretap application

must contain sufficient underlying facts so that the issuing judge can make an independent

determination as to the existence of probable cause. Dorfman, 542 F. Supp. at 361.,

aff'd United States v. Williams, 737 F.2d 594 (7th Cir. 1984). An affidavit submitted in

support of a wiretap application must be read in a commonsense and realistic manner

without inordinate attention to overly technical details. Spinelli, 393 U.S. at

415; In Re DeMonte, 674F.2d 1169, 1173 (7th Cir. 1982); United States v. Kirk,

534 F1262, 1274 (8th Cir. 1976). The affidavit must be assessed in its totality and a

reviewing court should not "undertake a piecemeal dismemberment of the various

paragraphs of the affidavit without attention to its force as a whole." United

States v. Leisure. 844 F.2d 1347, 1354 (8th Cir. 1988).

Pen registers have been widely accepted by courts as a

11

proper and significant means to aid in establishing

probable cause for electronic surveillance of telephones. See e.g., United States v.

Young. 877 F.2d 1099, 1103 (1st Cir. 1989); United States v. Danovaro. 877 F.2d

583, 585 (7th Cir. 1989); United States v. Gonzalez. 866 F.2d 781, 787(5th Cir.

1989); Leisure. at 1355; United States v. Tehfe, 772 F.2d 1114 (3d Cir.

1983); United States v. Todisco. 667 F.2d 255, 258 (2d Cir.1981). When an

individual is known to be engaging in ongoing criminal conduct and a pen register

discloses numerous calls between that individual and others also known to be engaging in

criminal conduct, the balance weighs heavily in favor of a probable cause finding that a

wiretap may disclose criminal evidence. Gonzalez at 787; Tehfe, 772 F.2d at

1118-19; Todisco, 667 F.2d at 258; United States v. Errera, 616 F.Supp.

1145, 1150 ( D. Md. 1985).

Probable cause must exist at the time the issuing judge

enters the interception order and the affiant must demonstrate that the information is not

stale. Dorfman, 542 F. Supp. at 362. There are no hard and fast rules on staleness.

It can only be judged by reference to the particular type of criminal activity.

"Thus, when the affidavit recites ongoing criminal activity of a type likely to

continue over a substantial period of time, the timeliness of the information in the

affidavit is less important." Dorfman, 542 F. Supp. at 362. See United

States v. Ozar 50 F.3d 1440 (Continuing nature of suspected bank fraud activity

provided substantial basis for issuing judge's finding of probable cause to believe

evidence of ongoing criminal bank

12

fraud activity would be uncovered by electronic

surveillance of meetings among defendants, even if good deal of activity discussed in FBI

agent's affidavit occurred at least five years ago.) The passage of time is less

significant when there is cause to suspect continuing criminal activity. Ozar, 50

F.3d at 1446, citing United States v. Tallman. 952 F.2d 164, 166 (8th Cir.1991),

cert. denied, 504 U.S. 961, 112 S.Ct. 2319, 119 L.Ed. 2d 237 (1992); and United States

v. Jones, 801 F.2d 304, 314 (8th Cir.1986).

The issuing judge is entitled to exercise considerable

judgment as to whether the facts alleged in the affidavit are sufficient to constitute

probable cause and the determination made by the issuing judge that probable cause exists

will be entitled to substantial deference from a reviewing court. United States v:

Kupper. 693 F.2d 1129, 1133 (5th Cir. 1982); Mancari, 663 F. Supp. at 1354; Dorfman,

542 F. Supp. at 361.

3. Summary and

Background.

On September 2, 1987, the government applied for and

received authorization to intercept telephone calls of Angelo LaPietra, James LaPietra,

Joseph Frank LaMantia (also known as "Shorty"), Frank Caruso (also known as "Toots" and Tootsie

Babe"), and others then unknown who comprised the leadership of an organization

referred to as the "Southside Group", "26th Street Crew" and/or

Southside/Chinatown Crew" and which organization was part of a larger organization

known as the "Chicago Outfit", with James LaPietra functioning as the leader

13

of the "26th Street Crew", and Frank Caruso, Joseph Frank LaMantia and Frank Calabrese ( also

known as "Frankie C") serving as his main assistants. The intercept was

authorized for the telephone subscribed to by the Old Neighborhood Italian American Club,

located at 266/268 West 26th Street, Chicago , Illinois. The target offenses were a RICO

conspiracy and substantive RICO violation involving conducting and participating in an

"association-in-fact" enterprise's affairs through a pattern of racketeering

activity and the collection of unlawful debts and conspiring to do so in violation of 18

U.S.C. section 1962(c) and (d). The pattern of racketeering activity also consisted of the

extortionate collection of street tax, 18 U.S.C. Section 1951; the operation and

management of an illegal gambling business, 18 U.S.C. Section 1955 (a); threatening and/or

inflicting of physical or property injury in violation of the intimidation laws of the

State of Illinois, Chapter 38, Illinois Revised Statutes, Section 12-6; and making

extortionate extensions and collections of credit in violation of Title 18, Sections 892

and 894 respectively.

The defendant contends that the probable cause for this

order was insufficient. Probable cause in the affidavit was based upon information

provided by eight(8) named individuals, fourteen (14) confidential informants, and pen

register and telephone information and physical surveillances in a one hundred and

fifty-three (153) page affidavit that contained information gathered from an multi-year

investigation. The affidavit

14

provided probable cause to establish:

1) the long standing existence of the Chicago criminal

organization known as the "Outfit";

2) the long standing existence of the "Southside

Group" and/or "26th Street Crew" as part of this Chicago crime

organization;

3) the long standing membership of each of the named

interceptees in the organization;

4) the participation of the "26th Street Crew"

in each of the target offenses for a number of years;

5) the participation of each of the named interceptees in

the RICO conspiracy and substantive offenses;

6) the use of the targeted telephone by one or more of the

named interceptees;

7) a close association between the targeted telephone and

both the named interceptees and the "26th Street Crew"; and

8) the use of the targeted phone in the furtherance of the

illegal gambling business and the collection of gambling debts, unlawful credit, and

street tax.

The specific assertions in the agent's affidavit are

summarized below.

a. Background of the Interceptees/Leadership of the "26^th

Street Crew"

Angelo LaPietra (7-8)7, had an arrest record going back to

1938, when he was arrested for carrying a concealed weapon. In 1974, he was arrested for

"juice" racketeering. He resided at 250 West 30th Street in Chicago until his

conviction in 1986 for interstate travel in aid of racketeering, in violation of Title 18,

U.S.C., Section 1952. LaPietra was convicted along with

________________

⁷ The page number references in this section of the Government's

memorandum refer to the pages in the September 2, 1987, affidavit of Special Agent Edwin

C. Barnett.

15

Chicago "Outfit" leaders Joseph Aiuppa, Joseph

Lombardo, Jack Cerone, and others for skimming money from Las Vegas casinos.

James LaPietra (pp.8-9), Angelo's brother, was arrested in

1941 for burglary and possession of burglary tools.

Joseph Frank LaMantia, a.k.a. "Shorty",(pp.

9-10), had an arrest record dating back to 1951. Over the years he had been arrested for

tampering with an automobile, burglary, robbery, larceny, theft from interstate shipment,

cartage theft, shoplifting, and in 1982 for gambling. He was indicted on December 16,

1982. for violation of Title 18, U.S.C., Sections 894 and 924 (c)(2) for which he was

acquitted. He had been convicted twice.

Frank Caruso, a.k.a. "Tootsie Babe",

"Toots", (pp. 10-11), was the son of the late Frank Tony Caruso, a.k.a.

"Skids' n who was formerly the "Outfit" boss of the Chinatown area of

Chicago. Frank "Tootsie Babe" Caruso was indicted in 1982 for violation Title

18, U.S.C., Sections 894 and 924 (c)(2) for which he was acquitted.

Frank James Calabrese, a.k.a., "Breeze",

"Frankie C", (pp.ll), had an arrest record dating back to 1954 when he was

convicted and served two years for violation of the Dyer Act. He was also arrested in

1963, 1974, and 1975.

b. Witnesses and

Informants.

Frank Cullotta, an

informant who had provided reliable information in the past concerning his knowledge and

association with organized crime in Chicago, testified that for twenty (20)

16

years prior to entering the Government's Witness Security

Program he associated with individuals whom he knew belonged to the Chicago crime

organization known as the "Outfit". He described the leadership of this

organization as including Joseph Lombardo, Joseph Aiuppa, and Jack Cerone, all of whom

were convicted with Angelo LaPietra in 1986 for skimming profits from Las Vegas casinos.

He also testified that during his twenty year association he committed crimes such as

burglary, armed robbery, and murder on behalf of this organization. Cullotta explained

that "street tax" is a payment to the Chicago family which allows an individual

to continue to operate an illegal or quasi-legal business and that threats of force and

violence are employed if the individual refuses to pay the tax.

Tony Gallas, was

a cooperating witness who had provided accurate and reliable information in the past. He

furnished information to the FBI between 1968 and 1970 as well as between 1978 and 1983.

He also helped in introducing FBI agents in an undercover capacity to members of the

"Outfit". Gallas stated that he was aware of the existence of the criminal

organization called the "Outfit" through his long association with various crime

figures. In the affidavit, he stated that the "Outfit" was organized into groups

and/or crews, that his personal association with Angelo LaPietra extended back "many

years" and that he once helped get LaPietra to the hospital for a gun shot wound

LaPietra received after they had participated in a "score". He reported that in

1968 Angelo and James LaPietra along with

17

Johnny Monteleone, Tony Spilotro, John Fecarotta, Turk

Torello, Steve Annerino, and Rocco Infelise were members of a group known as the

"Cicero Crew". Angelo LaPietra was in charge of the "juice" (loan

sharking) operation and in 1968 this "Crew" forced a "juice"

competitor out of the business by beating him and forcing him to withdraw $20,000. This

individual was eventually found dead. Gallas also reported that in August of 1979, Angelo

LaPietra personally told him that LaPietra would begin to operate any racket anywhere in

Chicago unless it was already spoken for by another organized crime figure. During this

discussion, LaPietra stated that he (LaPietra) would receive 50% from these activities and

that the money was to be paid to Jimmy Cordovano who would give it to him (LaPietra).

Subsequently, Cordovano told Gallas that he took the money to "a club on 26th

street" and personally gave it to LaPietra. Also, Cordovano indicated that LaPietra

often spent the entire evening at this club and used a call forwarding system to operate

the illegal activities. The affidavit stated that Gallas said that during October of 1979

Gallas gave 100% of the proceeds from a poker game Gallas ran to Cordovano who would later

return 50% to him (Gallas) as his share.

Ken Eto, a.k.a.

"Tokyo Joe", had been providing reliable information to the FBI since February

1983. In January 1983, Eto was convicted in United States District Court for violation of

federal gambling laws. On February 10, 1983, he was shot three times in the head by John

Gattuso who was with Jasper Campise.

18

(Both of whom were later found murdered in the trunk of a

car in a Chicago suburb in July of that year). Eto stated that he personally believed that

the murder attempt was ordered by one of Eto's bosses in the "Outfit" out of

fear that he would become an informant. In the affidavit, Eto stated that he had been

associated with the "Outfit" for thirty (30) years as a gambling business

operator and overseer and Eto described his thirty years of running illegal gambling

operations in Chicago dating back to the 1950's, the leadership transition of the

"Outfit" since the fifties, and having to pay street tax to the organization in

order to operate. He stated that the "Outfit" was organized into territorial

areas headed by "street bosses" which included Joseph Ferriola, Vince Solano,

and Angelo LaPietra. These bosses controlled all criminal activities in their area such as

gambling,extortion, prostitution, and "juice loans". Eto described how the

"Outfit" obtained money from gambling operators and that he had known Angelo

LaPietra for approximately 20-25 years, stating that they first met around 1956. He stated

that the "Outfit" provided security to a gambling operation Eto ran around that

time and that one of those persons was Angelo LaPietra. Eto stated Chateau of February,

1983 (the month he was shot and then went into Witness Protection), he knew that Angelo

LaPietra was the boss of the "Southside Outfit" and was involved in the

"juice" business which was being overseen for him by Frank Calabrese. Eto stated

that he dealt directly with Calabrese and often Calabrese would tell Eto that Calabrese

would have to get

19

permission from Angelo LaPietra in response to different

questions he (Eto) would ask. Eto also stated that Joseph Frank "Shorty"

LaMantia was a Outfit associate under Angelo LaPietra and that LaMantia had worked at a

race track taking illegal bets and extending "juice loans". Also, Eto stated

that Eto illegally bet with LaMantia at the race track.

Richard Mara began

cooperating with authorities in 1980. On July 11, 1980, he entered the Witness Security

Program. Prior to that, he was a long time Chicago armed robber, burglar and close

associate of Chicago organized crime figures. He stated that he grew up in the 26th Street

neighborhood with Frank "Tootsie Babe" Caruso and had known him for most of his

life. Mara stated that Frank's father "Skids" was once the boss of the

"Southside Crew" and that he operated a gambling room at 22nd and Wentworth.

Mara stated that when Angelo LaPietra became the boss of the "Southside Crew" in

the 1970's, "Skids" operation came under LaPietra's control. In the affidavit,

Mara stated that "Tootsie Babe" always wanted to become a "big time

Outfit" guy like his father and that his father would send "Tootsie Babe"

out on "jobs" for the Outfit such as collecting a juice loans", burglaries,

and robberies. Mara stated that Caruso would set up "scores that Mara would

participate in and that Caruso was careless because Caruso would frequently use the

telephone to discuss criminal activity such as "juice loans", burglaries and

other "Outfit" business. Mara also stated that Caruso owned a restaurant which

was across the street form the Old Neighborhood

20

Italian American Club called the "Hungry Hound

Restaurant" with a man named Larry Pusateri and that they ran a "juice

loan" and bookie operation from there. Mara stated that after the club (now known as

the Old Neighborhood Italian American Club) was opened at 26th and Princeton, Frank

Caruso, Pusateri, and LaMantia operated a gambling and juice operation there. He stated

that it was a customary business practice for the "Outfit" to have a "juice

loan" operation wherever there was gambling taking place. Mara also stated that

LaMantia ran "juice loans" primarily from the race track on a daily basis. In

the affidavit, Mara also described how Angelo LaPietra would collect the proceeds from the

"Outfits'" juice operations.

Vic Arrigo was a

self admitted member of the "Outfit" who had cooperated with the FBI on previous

organized crime investigations and entered the Witness Security Program in 1986. He had an

extensive arrest record and, through his association with other members of the

"Outfit," had gained extensive knowledge of its workings. In the affidavit,

Arrigo said that Frank Caruso was associated with the "Chinatown Crew" under the

management of Angelo LaPietra. Arrigo said that he, Arrigo, was at a meeting with other

"Outfit" members in November of 1983, when the murders of Gattuso and Campise

(Ken Eto's attempted murderers) were discussed. During this conversation it was stated

that the part of the Chinatown Crew headed by Frank Caruso may have done the killings.

Arrigo stated that he personally overheard a conversation in which Caruso told

"Babe" DeMonte that

21

Campise and Gattuso were killed because of fear they would

"talk" to the FBI. Caruso also told DeMonte that had DeMonte not been in jail

there would not have been a problem with the Eto "hit". In the affidavit, Arrigo

described a meeting attended by Vince Solano, DeMonte, Frank Caruso, and others in which

they discussed the void created by the recent conviction and sentencing of Joseph

"Caesar" Divarco, and any responsibilities of those present as to

"hoodlum" activities.

Guy Bills was

knowledgeable about organized crime on the Southside of Chicago from his personal

participation in a number of criminal activities and from information obtained from

relatives who were also involved in criminal activities. Bills began working for the

Angelo LaPietra organization in 1974 as a street tax and juice loan collector. This lasted

for approximately eight months. He described when and how the money would be collected. In

1986, he was interviewed concerning his knowledge of the Southside organized crime group

and stated that the group was headed by Angelo LaPietra until Angelo LaPietra's

incarceration when his younger brother James LaPietra took over leadership. Bills also

described the organizational structure the juice money collection workers and bookmakers.

Mr. Bills stated that 20-25 years ago he was personally present when "Shorty"

LaMantia received a street tax payoff from a "Chinaman named Wok." He also

identified several bookmakers, one of which was Joseph Frank "Shorty" LaMantia.

Daniel Borak also

cooperated and his cooperation resulted

22

in the 1982 arrests of Frank Caruso, Joseph Frank

LaMantia, Fred Bruno Barbara, and Aldo Piscitelli. Borak stated that he had been a gambler

for years and eventually he started working for LaMantia as a bookie. He was brought to

the attention of LaMantia in the middle of 1979 by a co-worker of Borak's while Borak

worked at the Water Department for the City of Chicago. The co-worker suggested that Borak

meet with LaMantia. Later Borak was contacted on the telephone by a man named

"Junior" who stated that "Shorty" wanted to meet him. Borak met with

"Shorty"⁸ and "Junior"⁹, on the corner of 26th

and Princeton Avenue near a grocery store.' During this meeting, they made an offer for

Borak to work exclusively for them and agreed on a payment schedule. Borak stated that in

1979 LaMantia owned the grocery store¹⁰ and that since then it changed into

Garibaldi's Club and then the Old Neighborhood Italian American Club. LaMantia was one of

the original organizers of the club. Borak then described in detail how the bookmaking

operation worked which included regular visits to 26th and Princeton Avenue to pick up

money to pay off winners and to meet with Shorty LaMantia. Borak also stated that they

used a call forwarding system and that he did not know the exact location of the layoff

office, but that it was in the vicinity of 26th and Princeton Avenue. Borak eventually

^{_____________________

⁸. Whom he later learned was Joseph Frank LaMantia.

⁹. Aldo Piscitelli, LaMantia's son.

¹⁰. The store was later renamed and changed into the Old Neighborhood Italian

American Club.

23

averaged $15,000 a week in bets. Borak explained that in

1982 LaMantia gave him $50,000 to loan out to his customers as a juice". Borak did

not loan out the money, but instead gambled and lost it. To cover up the loss, he gave

LaMantia a false list of juice borrowers. When Borak could not keep up the $2,500 a week

interest payments to cover the money, he told LaMantia that the list contained an error in

that he had loaned $20,000 of that to one person named "Ron".¹¹

LaMantia became upset and a meeting was set up with SA Elder posing as "Ron."

The meeting was surveilled, monitored, and recorded. During this meeting LaMantia

threatened both SA Elder and Borak about the juice money. LaMantia stated that the money

belonged to "other people" and that they both (LaMantia and Borak) could be in

some serious trouble. During another meeting when SA Elder expressed doubt that LaMantia

was "connected", LaMantia made various attempts to convince SA Elder that he was

in fact connected with organized crime. These attempts included naming individuals in the

organization¹² and pointing to a person sitting in a nearby vehicle who he said

would kill SA Elder if he (LaMantia) signaled him. On December 6, 1982, LaMantia, Frank

Caruso, Fred Russo, Aldo Pisticelli attempted to get a payment on the "juice"

money from SA Elder during a surveilled and monitored meeting. They were then arrested by

FBI agents. The affidavit contained a synopsis of the entire transaction leading up to the

arrest of

^{_____________________

¹¹ "Ron" was undercover FBI Special Agent Ron Elder.

¹²Two of whom were later found murdered in a Chicago suburb.

24

LaMantia and his cohorts.

Confidential

Source #1,¹³ was a self-admitted member of the "Outfit",

a burglar, robber, and murderer who has had regular contact with top level

"Outfit" members such as Joseph Ferriola, Ernest Rocco Infelise, Johnny

Monteleone and others and had provided reliable information since September, 1986, based

on personal experience and observations. In the affidavit, he described the organizational

structure of the "Outfit" and stated that Ferriola had been the boss of the

Outfit since the conviction of Aiuppa, Angelo LaPietra, Cerone, and Lombardo in 1986. He

also stated that the current head of the Angelo LaPietra Crew was James LaPietra and that

this "Crew" ran loan sharking ("juice"), gambling and street tax

operations on the near Southside 26th Street and Chinatown areas of Chicago. He described

another Outfit figure named Sam "Black Sam" Carlisi and his lieutenant James

Marcello as being very strong in the Outfit.l4 He furnished information concerning several

murders including the torture murder of William Petrocelli by Monteleone, Angelo LaPietra,

Ferriola and Scarpelli. He stated that he had personal knowledge and experience with the

"Club" located at 26th and Princeton in Chicago and that he frequented the club

on a regular basis between 1976 and 1980 for purposes related to street tax collection ,

gambling and loan sparking. He stated

^{13 The credibility and reliability of the

Confidential Sources are attested to in the affidavit.

¹⁴The affidavit later showed that the targeted telephone at the Club was used

to call Marcello.

25

that the club had long been the headquarters and meeting

place for the top members of the Angelo LaPietra Crew and that it continued to be used in

that capacity. He stated that James LaPietra, Joseph Frank LaMantia, Frank Caruso, Frank

Calabrese and numerous others frequented the club and regularly discussed their illegal

activities within the club confines. He also stated that they regularly used the

telephones within the club to discuss their illegal business transactions.

Confidential

Informant "Eric Smith", which was an alias provided by the FBI to

Chicago lawyer Robert Cooley, told the FBI in March, 1986, that he had information

concerning involvement of the Chicago "Outfit" in gambling and public

corruption. He had personal dealings with members and associates of the Outfit and the

"26th Street Crew" and had provided information which had been corroborated on

numerous occasions. Smith provided information on public corruption within the Cook County

Court system and within the Chinatown community. He had personal contact with a number of

Outfit "Bookies," some of whom stated that they worked for Angelo LaPietra and

later James LaPietra. Smith stated that he would collect his winnings and pay his losses

at the Hungry Hound Restaurant at 26th and Princeton located across the street from the

Old Neighborhood Italian American Club. Smith stated that in January, 1987, he learned

that James LaPietra had replaced his brother Angelo as the boss of the Southside Crew. He

also stated that he had learned that Angelo LaPietra had ordered the murder of a John

Fecarotta, who

26

worked as a juice collector for James LaPietra, from jail

through his brother James.

Confidential

Source #4, also stated that he was aware of the existence of the

"Outfit" through conversations with members and personal observations over an

extended period of time. On April 18, 1986, he stated that he was aware that the

"Southside Outfit" received a monthly payoff from "Chinatown". He also

stated on April 18, 1986, that a gambling operation was being operated in Chinatown at 211

West Cermakt5 and that Shorty LaMantia received a portion of the profits.

Confidential

Source #5 also stated that a gambling operation was being run at 211 West

Cermak and that he personally placed bets there. He described the method of placing bets,

collecting winnings, and the staff of the operation. He also described how one of the

staff persons fled the Chicago area out of fear of LaMantia, who had threatened the

individual over money connected with the operation.

Confidential

Source #6 confirmed the staff list given by C.I. #5, and stated that

during January, 1987 that Shorty LaMantia employed these people at that gambling operation

at 266/268 West Cermak (Sea Hoy Seafoods)

c. Information on the

Old Neighborhood Italian American Club

The club was located at 26th and Princeton and the street

address was 266/268 West 26th Street in Chicago. The address was formerly a business known

as "Garabaldi's Deli" run by Shorty

____________________

¹⁵

Seahoy Seafoods was located at 211 West Cermak.

27

LaMantia. Utility records reflected that the billing name

on utility bills sent to the Old Neighborhood Italian American Club was in Shorty

LaMantia's brother, Richard LaMantia. Service had been established since 1981. Phone

records provided by Illinois Bell Telephone revealed that (312) 326-5534 was a

non-published number under the name Old Neighborhood Italian American Club and was billed

to Frank Parilli. Two additional pay phones were listed under the Club's name which were

billed to a Ralph Sherry.

Confidential

Source #7, stated that on May 11, 1981, Angelo LaPietra was having the

Club converted to a gambling place for his people and that "Shorty" LaMantia

spent a lot of time at the club and would run the gambling operation. In June, 1981,

Angelo LaPietra began to consider making it a "meeting place" instead and that

Angelo LaPietra, "Shorty" LaMantia, and Frank Caruso were seen regularly at the

Club.

Confidential

Source #4, stated that during the spring of 1986 meetings frequently took

place in the Club for the purpose of discussing illegal business operations under the

guise of beneficial community work. Those illegal activities included gambling and

payment/non-payment of debts from illegal businesses. One such meeting occurred on March

27, 198616. He also stated that there was a phone at the club, that the phone number was

(312) 326-5534 (the targeted phone), and that he

__________________________

¹⁶In the affidavit, SA David Childre verified that he observed James

LaPietra and "Shorty" LaMantia enter the "Club" at 6:43 p.m. and 7:05

p.m. respectively on that day.

28

personally overheard "Shorty" LaMantia discuss

gambling and juice loans over that phone. He refused to give the date and time out of fear

his identity would become known.

Confidential

Source #8, stated that the Old Neighborhood Italian American Club was the

meeting place long utilized by top level members of the Angelo LaPietra Crew and that

Angelo LaPietra used it as such on a daily basis prior to his incarceration. He stated

that the club was presently being used by Angelo's brother, James, to run the organization

and that Confidential Source #8 had been paged on numerous occasions by individuals

involved in organized crime from the telephone inside the club. He also stated that

whenever he returned the pages, he had spoken about illegal gambling and other illegal

matters over this telephone. Source #8 stated that he was personally aware that the club

was regularly used by "Crew" members to discuss criminal activities such as loan

sharking, gambling, and street tax collection.

Confidential

Source #9 stated that although he had not visited the "Club"

since 1981 he knew that as a result of these visits and conversations with

"Dukie" Basile and Mickey Gurgone -~-that "James LaPietra, Frank Caruso,

Shorty LaManita, Peter Caruso, Nick Lococo, Fred Roti and John d'Arco continued to discuss

illegal business at the club and that the club had been and continued to be used as a

"drop" for money obtained from these activities". In the affidavit, he

stated that the above noted individuals visited the club regularly in order to transact

29

business. Source # 9 stated that there were several

telephones in the club and that the private telephone (the targeted phone) was set aside

to discuss "Outfit" business such as juice collection", and "illegal

gambling related matters". Also, he stated that James LaPietra, Frank Caruso and

Shorty LaMantia among others used this phone.

Confidential

Source #10, stated that the Old Neighborhood Italian American Club used

to be called "Garibaldi's n and was a "Outfit" hangout. He was last in the

club in 1978 when it was called Garibaldi's but the source was aware that Angelo LaPietra

used to frequently discuss business at this club and that his brother James used the club

in the same manner. He also stated that the telephone inside the club was used to discuss

"Outfit" business but Confidential Source #10 was unaware of specifics relating

to use of the telephone.

Confidential

Source #11 stated on March 27, 1986, that he regularly attended a

"crap" game on the second floor of the club which was run by Frank Caruso and

Larry Pusatieri. Cooperating Witness "Eric Smith" stated that he placed bets

with Larry Pusateri at a dice game ran by "Shorty" LaMantia which was held

several doors east of the hungry Hound Restaurant.17

Confidential

Source #12, stated on November 21, 1986, that Frank Caruso was in charge

of syndicated gambling in the 26th street area on behalf of the Outfit.

_____________________________

¹⁷The Club was east of the Hungry Hound Restaurant, across Princeton

Avenue.

30

The affiant reviewed Chicago Police Department records

which revealed that the Old Neighborhood Italian American Club was raided on November 28,

1982. "Shorty" LaMantia and his son, Aldo Piscitelli, were arrested after police

observed Piscitelli throw water soluble papers in the toilet and Shorty LaMantia throw

papers on the floor. Although most of the papers thrown in the toilet were destroyed,

recovery of these and the papers on the floor revealed records of money won and lost as a

result of sports bets. This occurred while the address was listed as a "social

club".

d.

Pen Register/Trap Information.

The affidavit in support of the application for the

wiretap at the Old Neighborhood Italian American Club, contained the results of extensive

coverage of pen registers. The court had authorized devices to be placed on (312)

791-1402, a telephone subscribed to by Frank Caruso at 255 West 25th Place in Chicago.

These court orders, which extended from thirty (30) to sixty (60) days, registered

in-coming and out-going telephone calls from July 25, 1985, to July 27, 1987. The court

also authorized that pen register devices be placed on (312) 326-5808 subscribed to by

Bertha LaMantia at 2812 South Shields in Chicago.^l8 The orders were dated

February 20, 1986 (30 days), May 6, 1987 (60 days), and July 2, 1987 (60 days). In

addition to the above court orders, orders were obtained to register the incoming and out-

___________________________________

¹⁸The "Club" is east of the Hungry Hound Restaurant, across

Princeton Avenue.

31

going calls for (312) 484-7513, subscribed to by James

LaPietra at 7116 West 28th, Berwyn, Illinois, dated February 20, 1986; December 23, 1986;

January 29, 1987; March 26, 1987; May 29, 1987; and July 27, 1987, and for (312) 326-5534

(the targeted telephone) at the Old Neighborhood Italian American Club from October 11,

1985 through July 27, 1987. The July 27, 1987 order was a 60 day order.

As a result of the above court orders, it was determined

that calls were dialed or pulsed to or from the targeted telephone at the "Club"

and the primary interceptees frequently. The affiant of the affidavit stated that he

reasonably believed that these calls were calls placed by the primary interceptees to the

"Club" or were placed from the club by the primary interceptees . The following

shows the results of the court ordered registers between the "Club" and the

primary interceptees: Frank Caruso ( 322 calls), Shorty LaMantia ( 216 calls), James

LaPietra (138 calls).

In addition to the above calls, the registers revealed

that at least one thousand and ninety-five (1095)¹⁹ calls were made from the

targeted telephone to the residences, homes, or businesses of individuals who were

identified by confidential informants and/or police records as being either associated

with the "Outfit" and other criminal organizations or "made members"

of those organizations. Many of those individuals had arrest and

________________________

¹⁹ See affidavit from pages 98 through 126

32

conviction records for illegal gambling, murder, battery,

burglary, armed robbery, and other crimes. Others have been identified as being involved

in gambling, and juice collection by confidential informants. The names of those

individuals were: Angelo LaPietra, Kurt Calabrese, Nick Lococo, Michael Talarico, Bill

Lazzaro, Michael "Gorilla" Gurgone, Raymond Tominello, Fred Roti, Pat Marcy,

James Marcello, Anthony Serritella, Angelo Imparato, Anthony Carvotta, John Balzano,

Richard Catezone, Richard LaMantia, Joseph Pacella, Fred Barbara, Joseph Sarelli, Richard

DeSantis, Mort Geller, Tony Boom, Morris Mutt" Caruso, Peter Caruso, Carmen Coco,

John Sansone, Anthony "Tony Ripe" Civella, Rocco LaMantia, Frank DeMonte,

Lawerence Marfoe, and Harvey May.

e. Physical

Surveillance.

The affidavit described the results of physical

surveillances conducted at the Old Neighborhood Italian American Club. me surveillances

conducted were not continuous but consisted of "drive-by" or "spot

check" surveillances where investigators drove by the club and recorded their

observations. A continuous surveillance was attempted in the Fall of 1985,but was

terminated after the subjects became aware of it. The affidavit listed the results of over

120 drive-by surveillances. This revealed that James LaPietra's vehicle was seen at the

"Club" sixty-six (66) times from February, 1985, to July, 1987. He was also seen

in the vicinity of the "Club" twenty-three times (23) from August, 1985, to

July, 1987. On some of the occasions

33

his vehicle was not recorded as being present. Frank

Caruso lived behind the "Club" within walking distance and thus did not have to

use his vehicle to get there. Nevertheless, his vehicle was observed at the

"Club" twenty-five (25) times between June, 1985, and April, 1987, and he was

seen in the vicinity of the "Club" seven (7) times.

Joseph Frank "Shorty" LaMantia's presence was

harder-to detect at the "Club" since no vehicle had ever been identified (since

June 1985) as being registered to Joseph Frank LaMantia and it was known that he was

frequently dropped off or drove another person's vehicle. The affidavit provided a record

of sightings of various vehicles at his home that would be seen at the "Club".

Also, the affidavit provided a record of sightings of Shorty LaMantia exiting those

vehicles and entering the "Club". There were four vehicles identified and those

vehicles were sighted twenty-eight (28) times time sat both LaMantia's residence and the

"Club" between January, 1987, and July, 1987 twenty-eight (28) times.

f.

Intercepted Conversations.

The affidavit showed that fifty-five telephone calls wed

placed between telephones at the Federal Correctional Institution at Danbury, Connecticut

(where Angelo LaPietra's was incarcerated) and the targeted phone at the "Club"

between April, 1, 1987, and July, 29, 1987. Telephone calls from these facilities were

widely known by jail inmates to be monitored. The recordings of those calls were obtained

by the affiant and

34

some of them were summarized in the affidavit. Those calls

show frequent conversations between Angelo LaPietra, James LaPietra, Shorty LaMantia, and

others. The speakers frequently talked in coded phrases which were described in the

affidavit.

4. There is a Substantial Basin to Conclude that

Probable Cause Existed for the September 2, 1987, Order.

The affidavit provided substantial probable cause

demonstrating the long standing existence of an organized crime group in Chicago known

variously as the "Outfit" or the "Organization". The evolution of this

group was traced from the 1950's through July, 1987 (Cullotta, Eto). The affidavit also

provided substantial probable cause that this organization was structured into territories

and "Groups/Crews" and that the "Southside/Chinatown Group" and/or

"26th Street Crew" was a long standing organization operating as one of those

Groups/Crews (Eto, Mara, Bills, C.S.1, Smith, C.S.4, C.S.7, C.S.8, C.S.9, C.S.10,

C.S.12,). The leadership of the crew had passed from Frank "Skids" Caruso to

Angelo LaPietra to James LaPietra (Mare, Eto, Bills, C.S.1, Smith). The mainstay of this

criminal organization remained constant, i.e. the operation of various illegal gambling

businesses, the collection of extortionate street tax through the threat/use of violence

and the extension and collection of extortionate credit.

Each of the named interceptees were shown to have had a

long criminal association with the "26th Street Crew"( Gallas, Eto, Mara,

Arrigo, Bills, Borak, C.S.1, Smith, C.S.5, C.S.7, C.S.4, C.S.9, C.S.10, C.S.11, C.S.12).

Angelo LaPietra had been the

35

"street boss" of the group after taking over the

operation from "Skids" Caruso in the 1970's (Mare, Eto, Bills, Smith, C.S.7,

C.S.8, C.S.1, ). The affidavit showed his association with this "Crew" long

preceded Caruso's death and his association with the "Outfit" had been life-long

and extended back at least into the 1950's (Eto "l956", Gallas "1968",

Bills "1974", C.S.7 "1981", conviction in "1986"). While in

prison he ordered the murder of a "juice collector" who worked for his brother

(Smith). Angelo LaPietra had also supervised loan sharking (Gallas) and gambling (Eto.)

Joseph Frank "Shorty" LaMantia was shown to have

been closely associated with the "26th Street Crew" for at least two decades, (

Bills "1960-1965", C.S.7 "1981", C.S.9 "1981", Borak,

"1979-1982", SA David Childre "1986", Eto, Mara, C.S.1, C.S.4, C.S.5,

C.S.6, Smith, Nov. 28, 1982 C.P.D. raid at "Club"). He had been connected with

the groups illegal gambling, "juice" and street tax activities (Sills

"1960-1965", C.S.7 "1981", C.S.9 "1981", Borak,

"1979-1982", Eto, Mara, C.S.1, C.S.4, C.S.5, C.S.6, Smith, Nov. 28, 1982 C.P.D.

raid at "Club").

Frank Caruso was also shown to have been closely

associated with the U26th Street Crew" ( Mara, Arrigo, 1982 arrest with Shorty

LaMantia, C.S.1, C.S.7, C.S.9, CS.11, C.S.12). In fact, his goal in life was to be a

"big Outfit guy" like his father who sent him out on Outfit jobs (Mara). He had

operated the 26th Street Crew's gambling operation (Mare, C.S.11, C.S.12).

James LaPietra was not only shown to have been closely

36

associated with the 26th Street Crew, but was

in fact a leader of that organization. (Bills, C.S.1,, Smith, C.S.8, C.S.10).

The criminal activity the named interceptees

engaged in with each other did not involve discrete single event crimes. Rather, they were

continuous crimes involving, both repeated criminal acts and communications among the

conspirators. The illegal sports gambling business required the operation of wirerooms,

the reporting of profits and losses, the collection of losing bets. Street tax was

collected on a monthly basis and required continuous monitoring of the "Crew's

territory" to ensure that all illegal and semi-legal business were paying the tax.

Loan sharking was the regular periodic collection and extension of extortionate credit.

The affidavit showed that the interceptees were part of an illegal organization that had

been in the "business" of crime for decades and that the enterprise had an

hierarchical structure and continuous part of leadership no different from a Fortune Five

Hundred corporation. The named interceptees constituted the management of that criminal

business. Such an enterprise would have needed continuous communication to function.

There was probable cause present in the

affidavit to show that the Old Neighborhood Italian American Club was one of the

"communication centers" of the "26th Street Crew". Numerous

confidential informants stated that the club was the meeting place of this organization.

Also, some of these informants stated that they personally observed, overheard, or spoke

with named

37

interceptees over the targeted phone located

in the club about criminal matters. These crimes included gambling, loan sharking, and

street tax collection. Some informants even stated that they personally participated in

gambling at this club. Even under the former Auguilar-Spinelli guidelines, the personal

observations of a confidential source are sufficient to establish the basis for his

information, so that a judge or magistrate will know that he or she is relying on

something more than a casual rumor. Seen e.g.. United States v. Deggendorf, 626 F.2d 47,

S1 (8th Cir. 1980); United States v. Rollins 522 F.2d 160, 164 (2d Cir. 1975).

Furthermore, there was probable cause to show

that each of the named interceptees regularly communicated through the targeted telephone.

Pen registers have been widely accepted by courts as a proper and significant means to aid

in establishing probable cause or electronic surveillance of telephones. See e.g., United

States v. Young. 877 F.2d 1099, 1103 (let Cir. 1989); United States v. Danovaro. 877 F.2d

583, 585 (7th Cir. 1989); United States v. Gonzalez. 866 F.2d 781, 787 (5th Cir.1989);

Leisure, 844 F.2d at 1355; United States v. Tehfe 772 F.2d 1114 (3d Cir. 1983); United

States v. Todisco, 667 F.2d 255,258 (2d Cir.1981). The affidavit contained pen register

results that showed repeated calls between the targeted telephone and the homes/residences

of the named interceptees. Frank Caruso had a total of 322 calls registered. Shorty

LaMantia had 216 calls and James LaPietra had 138. It is inconceivable that given the

38

longstanding nature and type of the criminal

relationship between these individuals that probable cause was not present, that these

telephone calls were purely social in nature or did not relate to criminal activity. The

probability of the criminal nature of the calls is strengthened by the fact the an

extraordinary number of calls (1095) from the targeted telephone were to individuals who

were identified by named and unnamed informants and/or criminal records as being either

"Outfit" members or associates. Many of those individuals had arrest and

conviction records for illegal gambling, murder, battery, burglary, armed robbery, and

other crimes. Others have been identified as being involved in gambling and juice

collection by confidential informants. When an individual is known to be engaging in

on-going criminal conduct and a pen register discloses numerous calls between that

individual and others also known to be engaging in criminal conduct, the balance weighs

heavily in favor of a probable cause finding that a wiretap may disclose criminal

evidence. Gonzalez, 860 F.2d at 787; Tehfe, 772 F.2d at 1118-19; Todisco, 677 F.2d at 258;

United States v. Errera, 616 F.Supp. 1145, 1150 ( D. Md. 1985).

The defendants contend that some of the

informants' basis of knowledge is not included in the affidavit. This argument lacks

credibility; the defense admits that the named informants have given information in the

past. ~ The affidavit trots out just about every living organized crime informer ever used

by the

39

Chicago-based federal law enforcement

authorities. However, in United States v. Pless, 982, F.2d 1118, 1125 (7th Cir. 1992), the

court stated that "although an informant's first-hand observations would generally be

entitled to greater weight, clearly probable cause may be founded on hearsay

reports." Also, "probable cause supported warrant where tip was substantially

corroborated by officer's independent investigation and information from other, unnamed,

informants, including one claimed to be reliable, even though some of the information was

three months old." see also United States v. Pritchard 745 F.2d 1112 (7th Cir.1984).

The defendants contend that much of the

information in the affidavit is stale, apparently because many of the events cited

occurred between 1950-1986. Their arguments relative to both staleness and probable cause

are an attempt to hide the forest by magnifying its individual trees. Not addressed is the

long standing nature of this criminal enterprise and the life-long membership of the

interceptees in that organization. "While the lapse of time involved is an important

consideration and may in some cases be controlling, it is not necessarily so. There are

other factors to be considered, including the nature of the criminal activity involved,

and the kind of property for which authority to search is sought." Ozar, 50 F.3d

1446. There are no hard and fast rules on staleness. It can only be judged by

_______________________

²⁰ Defendant's Motion to Suppress page 6.

40

reference to the particular type of criminal

activity. "Thus, when the affidavit recites on-going criminal activity of a type

likely to continue over a substantial period of time, the timeliness of the information in

the affidavit is less important." Dorfman, 542 F. Supp at 362. see also United States

v. Musson, 650 F.Supp 525, 534 (D.Col.1986) citing United States v. Reyes 798 F.2d 380,

382 (1Oth Cir.1986), "timeliness is not determined by counting the number of days or

months between the occurrence of the facts relied upon and the issuance of a warrant.

Timeliness depends upon the nature of the underlying circumstances and concepts. When the

activity is of a protracted and continuous nature the passage of time diminishes in

significance.) Given the nature of the criminal activity that was being investigated,

particularly the operation of and participation in a continuing criminal enterprise, it

was not unreasonable for the court, relying upon to rely on statements made in 1983 and

1984 and records dated in the late 1970's and early 1980's, to conclude that there was

probable cause. Musson, 650 F. Supp. at 534.

The affidavit shows that the enterprise that

was the "26th Street Crew" and its "corporate head," the "Chicago

Outfit," had been in the business of illegal gambling, street tax collection and loan

sharking for over forty years. The interceptees had a known association with that

organization for much of those forty years. Frank Caruso grew up within the organization

with membership being passed from father to son like a family

41

business. The affidavit traced the history of

this organization and the interceptees' association with it. It then provided information

which, at a minimum, suggested the continuing criminal nature of their association. In

United States v. Williams 798 F.2d 1024, 1034 (7th Cir.1986), the Court of Appeals dealt

with a similar situation. There the court stated that "the fact that details of drug

transactions occurring in 1982 and 1983 were included in the affidavit does not mean that

the affidavit concerned events too remote in time to create probable cause. Instead, those

details provided vital background information that bolsters the reliability of the

confidential informant and the affiant, as well as depicting the operating methods of a

continuing scheme."

Furthermore, pen register results provided in

the affidavit revealed that the interceptees were continuing to associate by way of the

targeted phone at the Old Neighborhood Italian American Club up to the time of the court

ordered interception. The Third Circuit Court of Appeals dealt with a similar situation in

Tehfe, 772 F.2d at 1119

In this case, ample information in the

affidavit shows that the Tehfe operation was one of several years standing. The and there

was no staleness in the view of recent information which permitted finding that the

enterprise was connected with the targeted telephone and that in the week just before the

wiretap application pen registers recorded calls from the principal to the targeted phone

and there was evidence that the enterprise included a series of contacts with the targeted

phone.

United States v. Tehfe, Supra, 772 F.2d at

1119.

During the interceptees' decades long

association with the

42

26th Street Crew, they had continued to

engage in the same crimes of illegal gambling, loan sharking, and collection of

"street tax.

The method of attack on the affidavit that

the defense engages in is neither new nor novel. In Leisure, 844 F.2d at 1354, the Eighth

Circuit dealt with this strategy and stated:

Appellants engage in a "divide and

conquer" attack on the affidavit, and urge this court to undertake a piecemeal

dismemberment of the various paragraphs of the affidavit without attention to its force as

a whole. We decline this invitation to review the affidavit in an overly stringent and

hypertechnical fashion. "It is sufficient that the information in the affidavit, when

assessed in its totality, was sufficient to support a reasonable belief" that

evidence of criminality by the subject of the surveillance would be obtained.

5. There is a Substantial Basis to Conclude that Probable

Cause Existed for the November 4, 1987, Order.

Special Agent Barnett's November 4, 1987,

affidavit incorporated his prior affidavit, which set forth probable cause to believe that

James LaPietra, Joseph Frank LaMantia, and Frank Caruso, and others utilized the

"Club" to discuss, meet and otherwise carry on their illegal activities. The

November 4, 1987, affidavit also set out additional facts to update the probable cause

that had been gathered from confidential sources, named informants and cooperating

witnesses. The November 4, 1987 application sought authorization to conduct electronic

surveillance of the "Club" through the use of microphones for oral

communications through the use of microphones involving

43

illegal gambling, extension and collection of

extortionate credit, and street tax collection. The updated information is summarized

below:

a.

Intercepted Wire Communication

The affidavit contained the dates and times

that James LaPietra, LaMantia and Frank Caruso were intercepted during the September 2,

1987, court ordered wire interception period. The proposed interceptees were shown to be

at the "Club" on a regular basis. James LaPietra was intercepted making

out-going calls during the wire interception period on September 4, 5, 6, 8, 11,18, 21 and

22, 1987. LaMantia was intercepted three times on September 8th t the first call was at

1154 and the last call was at 1921); three times on September 9th (first call was at 1149

and the last was at 1352); once on September 10th and two times on September 22 (first

call wee at 1045 and the last at 1100). LaMantia was detected at the Club from background

conversations overheard on the wire interception on September 4, 8, 19, 21, and 22. Frank

Caruso was intercepted at the "Club" on September 10, 11, 18 and 22. During the

period of intercepted wire communications, an out-going call was placed by an individual

believed to be Frank Parolee, who was known to work for Angelo LaPietra. During this

conversation he temporarily stopped conversing and picked up another telephone. When he

finished conversing on that telephone, he continued with his original conversation. He

explained to the original party that he "has two telephones to watch" The

affiant noted in the affidavit that the targeted

44

telephone was located at 268 West 26th Street

and that there were two coin phones listed for the adjoining section of the

"Club" at 266 West 26th Street. This lead the affiant to believe that the two

telephones mentioned by the speaker who was in the 268 West 26th street section of the

"Club" were not listed to the Club and might be "safe telephones"

which the interceptees knew could be used for illegal business. There two "safe"

telephones were not the subject of the court's interception order, were not intercepted,

and were unknown to the affiant.

b.

Surveillance

Surveillance conducted at the

"Club" showed the presence of a vehicle registered to James LaPietra on

September 21 and the 23. LaMantia was seen in the vicinity of the "Club" and

entering the "Club" on September 20, 21, and 23. c. Meetings at the

"Club" Confidential Source #13 (16-17)2lstated on September 21, 1987, that the

bookmaking operation of Michael Talarico, an Outfit associate, had been moved from the

"Club" to a location above a travel agency on 31st and Princeton, but that the

"Club" was still used as a meeting place. On September 9, 1987, C.S.13 also

stated that Michael Talarico rang poker game at 31st and Princeton on Wednesday and Sunday

nights. The affiant concluded that Michael Talarico continued to run illegal gambling for

James LaPietra.

On September 27 and 28, a person referred to

as "Captain D" (believed to be Donald DiFazzio) and Richard Catezone were

overheard

____________________

²¹The page number reference in this section refers to the November 4, 1987

affidavit.

45

as a result of the wire monitoring calling

numerous individuals reminding them of a meeting at the "Club" at 7:30 p.m. on

September 29. During a surveillance of the "Club" on that date, the FBI

identified James LaPietra, Mickey Gurgone, Frank Caruso, Joe Pacella, Michael Talarico and

others enter and exit the "Club".

On May 4, a recorded telephone call from

Angelo LaPietra to the "Club" revealed him talking about a Captains

Meeting" to occur at the "Club" on Tuesday night, May 5, 1987. The affiant

stated that it was apparent from the conversation that LaMantia and James LaPietra ran the

meeting and that the meetings occur on a regular basis. In the September 2, 1987 affidavit

C.S. #4 stated that meetings took place at the "Club" for the purpose of

discussing "Outfit" business and was attended by "Outfit" members and

associates. He stated that those normally in attendance included James LaPietra, Frank

Caruso, and LaMantia.

On October 14, 1987, Confidential Source #1

told SA Tom Noble that he had learned the Mickey Gurgone went to and met with James

LaPietra at the "Club" during the week of September 28-October 2nd. The purpose

of the meeting was to determine if an independent bookie named James Vinerelli was paying

"street tax" to any other "Crew". It was determined that he was not

and a decision was made to send a "representative of the 26th Street Crew" to

collect the street tax. An independent surveillance of the "Club" on September

29 resulted in observing James LaPietra, Mickey Gurgone and others exiting the

"Club" between 9-9:30 p.m.

Confidential Source #8 stated on October 2

and 6th that from

46

conversations with "26th Street

Crew" members CS-8 learned that the day to day gambling operations of the

"Crew" continued to be run from the a Club" by James LaPietra, LaMantia,

and others.

Confidential Source #9 stated on October 2

and 6th that he had remained in contact with a member of the "26th Street Crew"

and that he had learned that James LaPietra, "Shorty" LaMantia and others

continued to use the "Club" as a meeting place to discuss the daily operations

of the "Crew" which includes gambling and street tax collections.

d. Argument

The September 2, 1987, affidavit set forth

sufficient probable cause that the "Old Neighborhood Italian American Club" was

in fact a meeting place long utilized by the criminal organization known as the

"Southside/Chinatown Crew" and/or the "26th Street Crew". The November

4, ,987, affidavit provided additional information that showed that this decades-old

criminal organization continued to use this "Club" as their meeting place to

discuss the running of their illegal gambling, loan sharking, and street tax operations.

The defendant's argument against the November 4, 1987, affidavit is the same as his

argument against the September 2, 1987, affidavit. In both instances, the defendant's

attack is patently meritless.

In the incorporated September 2, 1987,

affidavit and the Nov 4, 1987, affidavit, much of the information provided was

cross-corroborated by the named and unnamed informants. One such piece of information was

that the "Old Neighborhood Italian American Club" was the meeting place of the

"26th Street Crew" for years and that

47

all of the named interceptees were closely

associated with both the "Club" and the "26th Street Crew". The

affidavit showed that an assortment of known criminal figures regularly visited this

"Club". Some of the informants described meetings held there by the

"Crew". In the November 4, 1987, affidavit, Confidential Informant #1 gave the

identities of two individuals, the time period and illegal purpose of the meeting.

Independent surveillance confirmed the presence of these two individuals during the stated

time frame at the "Club". Another such meeting was organized on September 27 and

28, by a person referred to as "Captain D" (believed to be Donald DiFazzio) and

Richard Catezone. Authorities became aware of this meeting when Captain D and Catezone

were overheard as a result of the wire monitoring calling numerous individuals reminding

them of a meeting at the "Club" at 7:30 p.m. on September 29. During a

surveillance on the "Club" on that date, FBI identified James LaPietra, Mickey

Gurgone, Frank Caruso, Joe Pacella, and Michael Talarico and others entering and exiting

the "Club". All of the above named individuals are identified as being

associated with the "Outfit" in either the incorporated September 2, 1987

affidavit or the November 4, 1987 affidavit.

A meeting was also organized on May 4th,

which was revealed from a recorded telephone call from the incarcerated Angelo LaPietra to

the "Club" in which he talked about a "Captains Meeting" which was to

occur at the "Club" on Tuesday night, May 5, 1987. The affiant stated that it

was apparent from the conversation that "Shorty" LaMantia and James LaPietra ran

the meeting and that the

48

meetings occur on a regular basis.

The defendant argues that the purpose of

these meetings was largely unknown and that one such meeting "could have been to

organize a Easter Egg hunt." The law however indicates that "even if there is a

possibly innocent explanation, as long as there is a reasonable probability that there is

criminal activity afoot, despite the presence of other possibilities, probable cause is

present. See. e.g.. United States v. Davis. 882 F.2d 1334, 1343 (8th Cir. 1989) ; United

States v. Anton, 633 F.2d 1252, 1254 (7th Cir. 1980), cert. denied, 449 U.S. 1084, 101

S.Ct. 870, 66 L.Ed. 808 (1981); Dorfman, S42 F. Supp. at 359. Also, that a probable cause

is only a reasonable probability of criminal activity; it does not require certainty or

even a prima facie showing of criminal activity. Spinelli v. United States, 393 U.S. 410,

419, 89 S.Ct. 584, 590, 21 L.Ed. 2d 637 (1969); United States v. Giacalone, 853 F.2d 470,

4478 (6th Cir. 1988); Dorfman, 542 F.Supp. at 359. The November 4, affidavit provides such

a reasonable probability that criminal activity was occurring under the same case law

cited to support the finding of probable cause in the September 2, 1987, affidavit.

B. The Government Properly Demonstrated to the Authorizing

Judge that Covert Electronic Surveillance was Necessary

1.

Standard of Review

Decisions of the authorizing judge are

afforded substantial deference and will be disturbed only if they manifest an abuse of the

court's discretion. United States v.Quintana, 508 F.2d 867, 874-75 (7th Cir. 1975).

49

2. Background

On September 2, 1987, the government

submitted to the court an application to intercept the wire communications of Angelo and

James LaPietra, Joseph Frank LaMantia, Frank Caruso, and "others as yet

unknown." [Def.Ex. 1 at 1.] The government alleged the longstanding involvement of

the named parties and others in a widespread and complex enterprise engaged in illegal

gambling, extortionate credit practices, and the collection of "street tax"

levied on the owners of illegal and quasi-legal businesses. The application set forth the

government's belief that Joseph Frank LaMantia and others, named and unnamed, were using

public telephone number (312) 326-5534, located at The Old Neighborhood Italian American

Club t the Club], 268 W. 26th St., Chicago, Illinois, in the commission of the offenses

outlined in the application. [Def.Ex. 1 at 4-6.] The application also stated that

"normal investigative procedures for determining the full scope of the conspiracy and

nature of the illegal enterprise either have been tried and have failed or reasonably

appear unlikely to succeed if continued, or reasonably unlikely to succeed if tried, or

are too dangerous." [Def.Ex. 1 at 6.]

In support of its application, the government

submitted an affidavit prepared by Special Agent Barnett, a five-year FBI veteran.

[F.B.I.] The affidavit outlined the agent's three-year involvement in the subject

investigation. The affidavit likewise presented an extensive factual predicate for the

agent's considered, professional conclusion that the named and unnamed parties had been

50

and were continuing to use the telephone

located in the Club to commit the enumerated state and federal offenses. [Def.Ex. 2 at

4-6.] Agent Barnett stated that the wire communications of the named and unnamed parties

the government expected to intercept would pertain to the operation of the illegal

activities outlined in the government's application:

In particular, teamed on the information

hereinafter provided, these wire communications will concern evidence of the above

described offenses including their activities relative to the management of illegal

gambling including activity of others who are involved in racketeering. The conversations

will involve discussions of accounts, the making of loans, collections, extortions,

bookmaking, payment of tribute by others to the interceptees to allow such others to

continue to operate illegal gambling games (also known as "street tax" payments)

as well as conversations to set up other meetings at other locations, presently unknown,

to discuss these matters in conversations concerning the complicity and activities of

unknown conspirators.²²

[Def.Ex. 2 at 6.] The affidavit expressed the

Agent's informed professional opinion that "normal investigative techniques have been

tried and have failed or reasonably appear to be unlikely to succeed if tried or would be

too dangerous." [Def.Ex. 2 at 7.]

To substantiate his conclusions, Agent

Barnett offered information obtained from eight named and fourteen unnamed informants with

ties to the named parties or the target criminal enterprise. [Def.Ex. 2 at 17, 18, 21, 27,

31, 35, 38, 58, 66, 67,

________________________

²² The target interceptions, both wire and oral communications, were similarly

restricted by the government in all subsequent applications and extensions.

51

76, 81, 83, 85, 89, 90, 104, 112.3 These

informants provided the following information:

1. It was the uniform opinion of those

informants, as well as a reasonable inference drawn from collateral information related by

them, that penetration of the enterprise would be both difficult and dangerous. [Def.Ex. 2

at 19, 21, 29, 31, 33-34, 40, 45-46, 49, 62-64, 69, 75-76, 87,-90-91.]

2. Informant Eto was the subject of an

assassination attempt following his conviction on federal gambling charges. Eto expressed

his reasonable belief that his execution was ordered to prevent possible cooperation with

law enforcement personnel. The would-be assassins were themselves later slain following

the bungled attempt. [Def.Ex. 2 at 21-22.] The consensus in the relevant community is that

members of the subject criminal enterprise were responsible for these acts. [Def.Ex. 2 at

33-34.]

3. Agent Barnett was personally involved in

the murder investigation of John Fecarotta, executed when law enforcement authorities

granted him immunity to testify before the President's Commission on Organized Crime.

Agent Barnett related that as a consequence of the murder, "[r]elatives and other

witnesses [were] very reluctant to furnish information out of fear of retribution. . .

." [Def.Ex. 2 at 62-64.]

4. Many reliable informants related to Agent

Barnett the heightened sensitivity to physical surveillance of the named interceptees and

their associates. Individual subjects were likewise observed using a variety of vehicles

in the conduct of their affairs. [Def.Ex. 2 at 28, 48-50, 55-57,.87, 103, 126-27, 130-32.]

5. Numerous informants related that admission

to or participation in the organization or its activities did not shield members or

participants from violence when problems arose. [Def.Ex. 2 at 18, 21-22, 40-41, 53-57, 62,

66, 73.]

6. Numerous informants provided information

of longstanding illegal gambling, extortionate credit practices,

52

racketeering activities, and gangland

violence taking place at sites throughout greater Chicago and northern Indiana.

Information provided by those same sources indicates participation in and orchestration of

those activities by the named parties and their associates. [Def.Ex. 2 at 19, 22-25,

32-33, 35-37, 41, 65, 72-73, 111, 114.]

7. Numerous informants related their personal

knowledge that the Club was used to conduct the business affairs of the illegal gambling

operation. [Def.Ex. 2 at 42, 76-78, 80, 82-83, 84-89.]

8. Several previous unsuccessful or partially

successful investigations or surveillance efforts were disclosed. These included physical

searches, numerous neighborhood drive-throughs and covert surveillance, and an

unsuccessful attempt to rent a nearby house from which to view the Club. [Def.Ex. 2 at 43,

57, 59-60, 69-72, 88-89, 113, 126-32.] Recovery of possible gambling records was stymied

in one raid when one of the named interceptees was able to toss water-soluble paper used

to record data into a toilet before being apprehended by law enforcement personnel.

9. Information presented suggested that

members of the enterprise were privy to confidential information relating to ongoing law

enforcement activities, thereby placing at risk the integrity of clandestine operations.

[Def.Ex. 2 at 59-61, 65, 68-70.]

10. Agent Barnett acknowledged in his

affidavit that the results of numerous court-authorized pen register and trap and trace

devices, as well as review summaries of telephone toll records "in and of themselves

only provided circumstantial evidence that the telephone was used and that contact was

made between two telephones. They do not identify those individuals actually making and

receiving telephonic communications, nor do they ascertain the nature of the

communication. n [Def.Ex. 2 at 91-126, 148.]

Agent Barnett related his informed

professional opinion that all of the sources from whom information had been gathered were

53

properly "fearful for their lives and

most certainly would be in jeopardy" if their involvement with law enforcement

authorities were made known. [Def.Ex. 2 at 144.] He also concluded that the information

developed by various alternative investigatory techniques provided "a very limited

view of activities" occurring at the Club. [Def.Ex. 2 at 127.] Agent Barnett then

listed nine reasons why those same sources were not properly positioned to provide further

information necessary to ascertain the extent of the criminal activities or ferret out the

leaders of the organization, the stated goals of the investigation. [Def.Ex. 2 at 145-46.]

Agent Barnett next assessed the strengths,

limitations, and effects on the ongoing investigation of numerous alternative methods used

to develop information, including grand jury subpoenas and immunity, physical

surveillance, telephonic toll records, trap and trace devices, police records, search

warrants, and infiltration. In his professional opinion, the sources then available to the

government were unlikely to "identify the full extent of the illegal activities of

the enterprise." [Def.Ex. 2 at 147-50.] The agent indicated that all clandestine wire

interceptions, if authorization were obtained, would conform to the minimization

requirements ~ -forth in Chapter 119, Title 18, United States Code; he likewise affirmed

that the law enforcement officers responsible for monitoring the interceptions would

receive "the necessary minimization orientation. [Def.Ex. 2 at 151.]²³

_____________________

²³Every agent, officer and AUSA involved in the operation was required to read

the affidavit submitted by the government in support of the application in order to

familiarize themselves with the (continued...)

54

On the strength of these representations, the

court issued a wire intercept authorization order for pay telephone number (312) 326-5534,

located at the Club. [Def.Ex. 3.] It stated in relevant part:

[The government is authorized] to intercept

wire communications of Angelo Pietra, Lames LaPietra, Frank Caruso, Joseph Frank LaMantia,

and others as yet unknown . . . . Such interception shall not automatically terminate . .

. but shall continue until communications are intercepted that reveal the manner in which

Angelo LaPietra, Lames LaPietra, Frank Caruso, Joseph Frank LaMantia . . ., Frank

Calabrese . . . and others as yet unknown participate in the conduct of the affairs of the

enterprise through the collection of unlawful gambling debts and commission of

racketeering acts . . . and which reveal the identities of their confederates, their

places of operation, and the nature of the conspiracy involved, or for thirty (30) days,

whichever is earlier

[Def . Ex. 3 at 4 - 5 . ] In issuing the

order, the court expressed its finding that "normal investigative procedures have

been tried and ##

_______________________

²³(...continued)

nature of the investigation, the subject crimes, and the principal interceptees and their

confederates. They were likewise required to read an court orders authorizing

interception: an agents and officers were required to sign a sheet indicating their

compliance with these directives. Every agent, officer, and AUSA involved in the operation

was also required to attend a minimization conference held by the attorney in charge and

two Special Attorneys from the Organized Crime Strike Force, U.S. Department of Justice.

Attendees were briefed on compliance with the court orders; particular emphasis was placed

on: a) the type of communications targeted; b) the subject crimes to which the target

communications related; c) minimization generally and minimization of non-pertinent

matters in particular; d) procedures for handling communications relating to crimes not

named in the court order; e) procedures for handling privileged communications; and f)

procedures for handling equipment malfunctions. AU participants were instructed to

familiarize themselves with the directives set forth in the affidavits and the court

orders; they were likewise required to sign a sheet indicating their attendance at the

minimization conference. A written minimization memorandum also set forth the duties of

the agents and officers involved in the operation. Specific instructions were therein

provided to each monitoring agent and officer involved in order to ensure technical and

procedural consistency throughout the life of the court order. Copies of the affidavits,

court orders, and minimization memorandum were posted at the monitoring site. All

attorneys involved in the operation, including the attorney in charge, were placed on 24

hour call during the entirety of the operation. Telephone numbers were provided to enable

monitoring agents to reach supervisory attorneys at any time if problems or questions

arose.

55

failed, reasonably appear unlikely to succeed

continued, reasonably appear unlikely to succeed if tried, or are too dangerous.²⁴

[Def.Ex. 3 at 4.] The order mandated that the government provide the court with status

reports to be submitted at five-day intervals during the life of the interception order²⁵.[Def.Ex.

3 at 5-6.] The court also set forth limitations on the type and content of the

communications the government was authorized to intercept²⁶. [Def.Ex. 3 at 3.]

The 30-day authorization order was issued on September 2, 1987.²⁷At the end of

the 30 day period the government did not seek a renewal of the authority to intercept ##

_________________

²⁴     The court issued identical findings after reviewing

affidavits and documentation submitted in support of subsequent applications and

extensions.

²⁵    Each report

subsequently prepared by the government contained inter alia the following information: 1)

the total number of intercepted communications; 2) the total number of minimized

communications; 3) the total number of conversations the government considered

"pertinent;" 4) a statement that interception ceased nightly during the period

between llpm and 7am, a decision based-in part on pen register records indicating

historically low usage of the telephone during those intervals; 5) transcriptions or

summarizations of those communications the government considered pertinent; 6) an

evaluation of the significance of those communications the government considered

pertinent; 7) a statement of expectation with respect to future interceptions; and 8) an

evaluation of the progress of the operation and the problems encountered. [Def.Ex. 25.]

Also submitted with the status reports were copies of the monitoring agents' interception

logs. These contemporaneous records made by the monitoring agents indicated inter_alia

the date, time, duration, and general subject matter of each intercepted call, including

an entry indicating whether the interception had been minimized. The government duly

submitted the status reports and copies of the agents' interception logs to the court at

the designated intervals.

²⁶    Each one of

the subsequent authorization orders placed similar restrictions on the communications

that- could be properly captured by the government.

²⁷   The

September 2, 1987, and order all of the court's subsequent authorizations contained a

limiting provision requiring the government to terminate the clandestine interceptions

upon attainment of the authorized objective, or in any event in thirty days measured from

the earlier of the day on which the interceptions began, or ten days from the issuance of

the order.

56

wire communications.

Following the termination of the wire

communications interception order, the government applied for an oral interception order,

requesting the court's permission to place hidden microphones at the Club to intercept the

communications of James LaPietra, Joseph Frank LaMantia, Frank Caruso, and other

co-conspirators as yet unknown. [Def.Ex. 4 at 1-2.] The government again outlined its

objectives, including the type and content of the communications it sought to intercept,

limiting its application to "intercept oral communications . . . only if James

LaPietra, Joseph Frank LaMantia, Frank Caruso, or persons subsequently determined to be on

the premises described above either through visual surveillance or, if visual surveillance

cannot be accomplished, through voice identification through intermittent

monitoring." [Def.Ex. 4 at 8.]

Special Agent Barnett submitted a 38-page

affidavit in support of the application. He informed the authorizing judge that James

LaPietra and Joseph Frank LaMantia had twice traveled to visit Angelo LaPietra at the

federal prison in Danbury, Connecticut during the initial monitoring period, thereby

reducing the number of communications intercepted from these parties at the C ~ --[Def.Ex.

5 at 13-14.] He also related information strongly suggesting that the integrity of

security surrounding the intercept operation had been compromised: one party was overheard

to notify another that "this is not a phone to talk on." [Def.Ex. 5 at 26-27.]

Other parties expressed similar caution.

Agent Barnett then set forth

information derived from the

57

previously authorized wire interception

order, noting that the Club was "not open to the general public and access is

strictly controlled." [Def.Ex. 5 at 7-9, 11-13, 17-20.] Intercepted conversations

revealed that the Club was regularly used as the site for meetings attended by numerous

individuals with ties to organized crime. [Def.Ex. 5 at 17-18.] The subject matter of

those meetings, in Agent Barnett's considered professional opinion, related-both to

"legitimate and illegal activities" engaged in by the criminal organization.

[Def.Ex. 5 at 19.] He also indicated that as a result of information obtained through the

court-authorized wire intercept, he had come to believe that other non-listed "safe

telephones" used to conduct illegal activities might well be in operation at the

Club. [Def.Ex. 5 at 20.] It was Agent Barnett's informed professional recommendation that

the introduction of hidden microphones would "reveal the nature of conversations

occurring over these ['safe'] telephones." [Def.Ex. 5 at 20.]

Agent Barnett reiterated his belief that

confidential informants would be placed in jeopardy if their cooperation with law

enforcement authorities was revealed. He likewise reiterated that the limited information

each of the sources could provide would ~ --permit the ascertainment of the full extent of

the conspiracy or prosecution of the leaders. [Def.Ex. 5 at 28, 30, 34.] The inability of

some sources to provide information relevant to specific targets; the involvement of

others in alternate investigations; the unwillingness of many to testify; and the evolving

nature of the investigation itself were cited by Agent

58

Barnett as grounds for his informed,

professional conclusion that clandestine oral interception was necessary. [Def.Ex. 5 at

28-30.] He once again assessed various alternative investigative techniques, measuring

them against the goals of the investigation, the extent and complexity of the criminal

enterprise, and their probable effect on the future of the operation. [Def.Ex. 5 at

30-34.] The agent informed the authorizing judge that the operation would be conducted so

as to minimize the capture of all non-pertinent conversations pursuant to 18 U.S.C. §

2518.

A thirty-day authorization for the oral

communications interceptions was granted on November 4, 1987. [Def.Ex. 6.] The court

limited the nature and subject matter of the communications that the government was

authorized to intercept and mandated that the government provide status reports at

five-day intervals during the life of the order. [Def.Ex. 6 at 6.] The judge also

cautioned that interceptions were to be conducted:

only if James LaPietra, Joseph Frank

LaMantia, Frank Caruso or persons subsequently determined to be co-conspirators of any of

the named interceptees are determined to be on the premises described above either through

visual surveillance or, if visual surveillance cannot be accomplished, through voice

identification through intermittent monitoring.

[Def.Ex. 6 at 6.] Such limiting provisions

were included in all subsequently issued oral interception authorizations end extensions.

Monitoring began on November 10, 1987, and terminated on December 9, 1987.

On December 21, 1987, the government

submitted a renewal application for oral communications interceptions. [Def.Ex. 7.]

59

The 38-page supporting affidavit related

inter alia a summary of results from the court's previous authorization. [Def.Ex. 8 at

11-22.] Agent Barnett reminded the court of the ongoing fear of retaliation expressed by

the sources identified by name or number in the original affidavit. He likewise renewed

his concern about the effects on the ongoing investigation of the use of interviews or

grand jury immunity or subpoenas to compel testimony. [Def.Ex. 8 at 29-30, 32.] The agent

cautioned the court that efforts to compel testimony frequently proved counterproductive;

he also advised that the investigation had not yet evolved to the point where the

government possessed information sufficient to compel hostile witnesses to testify

forthrightly. [Def.Ex. 8 at 35-36.] Agent Barnett indicated no change in the ability of

informants to provide information central to the realization of the goals of the

investigation. He likewise indicated that the subjects of the investigation remained

extremely sensitive to physical seurveillance, and noted the subjects' ongoing efforts to

evade detection. [Def.Ex. 8 at 31-33.] He noted in particular the clannishness of the

group, reaffirming the aversion to outsiders within the largely ethnic neighborhood in

which the Club was located. [Def.Ex.2 at 88-89, 126-27; Def.Ex 8 at 36.] Agent Barnett

reaffirmed his pledge to conduct all interceptions in accordance with the minimization

requirements set forth in 18 U.S.C. § 2518. [Def.Ex. 8 at 36-37.]

On December 21, 1987, the court extended

authorization for clandestine oral communications interception at the Club for an

additional 30 days. [Def.Ex. 9.] In issuing the extension, the

60

judge again ordered that the government

submit status reports at five-day intervals. [Def.Ex. 9 at 6.] Monitoring was initiated on

December 21, 1987, and terminated thirty days later, on January 19, 1988.

On February 5, 1988, the government submitted

an application for a second renewal to intercept oral communications at the Club. [Def.Ex.

10.] After reviewing the application and Agent Barnett's affidavit, the court issued the

30-day oral communications interception extension order. [Def.Ex. 12.] All interceptions

were to be properly minimized; the government was directed to provide status reports on

the monitoring at five-day intervals; and interception activity was to halt on the

attainment of the goals of the investigation, or within 30 days (whichever event came

earlier). [Def.Ex. 12 at S-6.]

As part of its ongoing investigation, the

government submitted an application on March 15, 1988, to intercept wire communications at

public telephone number (312) 842-9490, located at Gino's Tavern, 2644 South Wells,

Chicago, Illinois. The application also indicated that the government sought additional

authorization to intercept oral communications at that mite. The named interceptees at

t~-~ site were Joe Wing, Aldo Piscitelli, Kenneth Hom, and "others as yet

unknown." [Def.Ex. 13 at 1-2.] The application indicated that the named interceptees

were "employed by and associated with an enterprise that affects commerce, that is, a

group of individuals associated in fact," comprised of numerous named and unnamed

parties including Joseph Frank LaMantia. [Def.Ex. 13 at 2.] The target

61

communications, as the application indicated,

concerned a range of specified illegal activities, "including activities relative to

the management of illegal gambling" conducted and directed by numerous named and

unnamed parties including Joseph Frank LaMantia. [Def.Ex. 13 at 4-5.] The government's

application requested permission in part "to intercept wire communications at the

above described telephone and oral communications at Gino's Tavern . . ; until

communications are intercepted which reveal the manner in which . . . Joseph Frank

LaMantia . . . and others . . . participate in the conduct of the affairs of the

enterprise n [Def.Ex. 13 at 7.] On March 16, 1996, the court issued authorization to

intercept both oral and wire communications at Gino's Tavern. The authorization stated in

relevant part: "Such interceptions . . . shall continue until communications are

intercepted that reveal the manner in which . . . Joseph Frank LaMantia . . . [and others]

participate in the conduct of the affairs of the enterprise n {Def.Ex. 15 at 4-5.]

Subsequent applications for 30-day extensions

of oral and wire interception authorizations were submitted on April 15, 1988, and June 1,

1988. The June 1, 1988, application did not see extension for oral communications

interceptions at Gino's Tavern. [Def.Ex. 16, 19.] Those authorization orders were issued

on April 15 and June 1, 1988, respectively.

3. Adequacy of the Government's Showing of Necessity.

The defendant LaMantia contends that the

government failed to adequately demonstrate the necessity of clandestine wire and oral

62

interceptions, and that the authorizing judge

then failed to properly review the government's applications before issuing or renewing

the interception orders. He suggests that the applications were insufficiently specific

and that the availability and "success of normal investigative techniques"

should have barred the government from resorting to clandestine interception.

Title 18, United States Code, Section

2518(1)(c), requires the government to support an application for clandestine electronic

interception with "a full and complete statement as to whether or not other

investigative procedures have been tried and failed or why they reasonably appear to be

unlikely to succeed if tried or to be too dangerous." The statute imposes a

symmetrical obligation on the authorizing judge to ascertain whether "normal

investigative procedures have been tried and have failed or reasonably appear to be

unlikely to succeed if tried or to be too dangerous." 18 U.S.C. § 2518(3)(c). The

purpose of this exhaustion requirement is to ensure that clandestine electronic

interceptions---wiretaps and bugs are not "routinely used as the initial step in

criminal investigation" or unthinkingly utilized "in situations where

traditional investigative techniques would suffice to expose the crime." United

States v. Giordano, 416 U.S. 505, 515 (1974); United States v. Kahn, 415 U.S. 143, 153

n.12 (1974).

The government's burden in establishing the

necessity of clandestine interceptions is not great. United States v. Farmer, 924 F.2d

647, 652 (7th Cir. 1991). The application must set forth "whether or not other

investigative procedures have been tried and

63

failed or why they reasonably appear to be

unlikely to succeed if tried or to be too dangerous." 18 U.S.C. § 2518(1)(c) (1996).

me supporting affidavit need only present a factual predicate sufficient to support the

affiant's conclusions. United States v. Zambrana, 841 F.2d 1320, 1329 (1988). The

statutory directive is disjunctive, thereby providing the government three alternative

means to establish the need for the interceptions. 18 U.S.C. § 2518(1)(c) (1996). The

authorizing judge must interpret the sufficiency of the showing of necessity based on the

entire application in a practical, common sense fashion. See S. Rep. No. 1097, 90th Cong.,

2d Sess. 70, 101 (1968), reprinted In 1968 U.S.C.C.A.N. 2112, 2190 [S. Rep. No. 10973;

United States v. Ventrasca, 380 U.S. 102, 108-09 (1965)("[A]ffidavits for search

warrants . . . must be tested and interpreted . . . in a common sense and realistic

fashion. . . . Technical requirements of elaborate specificity . . . have no proper place

in this area."); United States v. Smith, 31 F.3d 1294, 1297 (4th Cir. 1994); In re

DeMonte, 674 F.2d 1169, 1174 (7th Cir. 1982). The courts have never insisted that the

applicant systematically exhaust, or even attempt, all possible methods of investigation

before resorting to clandestine interception. Rather, the application need only

demonstrate "that the success of other methods of investigation appear[s]

unlikely." United States v. Anderson, 542 F.2d 428, 431 (7th Cir. 1976) (citation and

quotation marks omitted); accord, United States v. Abou-Saada, 785 F.2d 1, 11 (1st Cir.

1986); United States v. Orena, 883 F. Supp. 849, 863 (E.D.N.Y. 1995)(the

64

government must show that normal

investigative methods "pose difficulties"). The supporting affidavit thus need

only present a factual predicate sufficient to support the affiant's conclusion that

normal investigative procedures have failed or are likely to do so. Zambrana, 841 F.2d at

1329; Smith, 31 F.3d at 1298 (citing cases).

The question of Title III necessity was

reviewed by the Court of Appeals in United States v. Farmer, 924 F.2d 647 (7th Cir. 1991).

Defendant drug dealer, racketeer, and murderer Farmer claimed that the government had

failed to demonstrate necessity in its application for covert electronic surveillance. The

appellate court, like the trial court, dealt quickly with his arguments:

The government's affidavits--which asserted

that electronic surveillance was necessary 1) because the investigation was having trouble

fingering other members of the conspiracy without electronic surveillance; 2) because of

the difficulty in conducting undercover surveillance in Farmer's ethnic neighborhood; and

3) because of the possible danger to undercover agents and cooperating witnesses were

sufficient, given the government's burden, to establish necessity under Title III.

Id. at 652. The documents submitted by

Agent Barnett in the insane case, just as those submitted in support of the Farmer

application, are more than sufficient: to satisfy the government's burden in demonstrating

the necessity of clandestine interception.

On its face, Agent Barnett's affidavit

addresses both a strict interpretation of the statutory language that "other

investigative procedures have been tried and failed and the Supreme Court's

65

expressed concern in Giordano that

clandestine interception not be used "as the initial step" in criminal

investigations. 18 U.S.C. § 2518(1)(c) (1996); Giordano, 416 U.S. at 515. The agent set

forth in some detail a list of alternative procedures that had been employed during the

three-year, pre-intercept phase of the investigation. See United States v. Ozar, 50 F.3d

1440, 1442 (8th Cir. 1995)(2-year pre-intercept phase); United States v. Hide, 574 F.2d

856 (5th Cir. 1978)(2-year pre-intercept phase); United States v. Plescia, 773 F. Supp.

1068 (N.D. Ill. 1991)(7-month pre-intercept phase), aff'd, 48 F.3d 1452 (7th Cir. 1995),

cert. denied, _ U.S._, 116 S.Ct. 114 (1995); United States v. Costello, 610 F. Supp. 1450

(N,D. Ill. 1985)(2-year pre-intercept phase), aff'd sub non United States v. Olson, 830

F.2d 195 (7th Cir. 1987), cert. denied, 484 U.S. 1010 (1988); United States v. Suquet, 547

F. Supp. 1034 (N.D. Ill. 1982)(3-year pre-intercept phase). Agent Barnett stated that

efforts to "penetrate to the heart of the scheme" would be stalled unless the

court permitted clandestine wire and oral interceptions. United States Van Mancari, 663 F.

Supp. 1343, 1347-48 (N.D. Ill. 1987); United States v. Smith, 909 F.2d 1164, 1166 (8th

Cir. 1990). Telephone records and trap and to devices showed that certain telephones were

being used, but permitted discovery of neither the contents of the conversations nor the

speakers. Physical surveillance demonstrated that known and unknown parties were meeting,

but left unanswered the nature or subject of those meetings. Named and unnamed informants

were either unwilling, unable, or improperly situated to provide information

66

essential to the stated goals of the

investigation--discovery of the scope and extent of the illegal operation, and prosecution

of the leaders of the enterprise. Efforts to penetrate the organization by undercover

informants were ongoing, but as yet were insufficiently developed to permit an overview of

the entire organization. This state of affairs is precisely the situation Congress meant

to address in enacting Title III legislation:

Victims, complainants, or witnesses are

unwilling to testify because of apathy, fear, or self-interest, and the top figures in the

rackets are protected by layers of insulation and direct participation in criminal acts.

Information received from paid informants is often unreliable, and a stern code of

discipline inhibits the development of informants against organized crime. In short,

intercepting the communications of organized criminals is the only effective method of

learning about their activities.

S. Rep. No. 1097 at 72, 1968 U.S.C.C.A.N. at

2159 (cited with approval in United States v. Torres, 751 F.2d 875, 881 (7th Cir. 1984),

cert. denied sub nom. Rodriguez v. United States, 470 U.S'. 1087 (1985)).

The agent's affidavits set forth numerous

acts of violence and intimidation, including but not limited to the Eto and Fecarotta

attacks and the beating of a named informant over a gambling den" A reasonable

inference drawn from these episodes, by an authorizing judge or persons contemplating

cooperation with the investigation, would be that a decision to testify against the

defendants or their confederates might have dire personal consequences. Such refusal to

testify because of fear of harm or retaliation, noted frequently in Agent Barnett's

affidavits, has long been recognized as a valid

67

consideration in assessing the availability

of alternative investigative means and "why they reasonably appear to be unlikely to

succeed if tried or to be too dangerous." 18 U.S.C. §§ 2518(1)(c) and (3)(c)

(1996). See egg, United States v. Leisure, 844 F.2d 1347, 1356 (8th Cir. 1988), cert.

denied,- 488 U.S. 932 (1988); United States v. Wilkinson, 754 F.2d 1427, 1433-34 (7th Cir.

1985), cert. denied, 472 U.S. 1019 (1985); United States v. Jimenez, 824 F. Supp. 351, 358

(S.D.N.Y. 1993); United States v: Gotti, 771 F. Supp. 535, 546-47 (E.D.N.Y. 1991).

Moreover, efforts to compel testimony from such sources by subpoena or grants of immunity,

in addition to alerting those in the enterprise that they were the subjects of an active

investigation, could reasonably jeopardize future efforts to penetrate the organization by

demonstrating a willingness on the part of the government to breach confidentiality

agreements. Mancari, 663 F. Supp. at 1349-50; Dorfman, 542 F. Supp. at 399. Defendant

LaMantia's attempts to minimize the valid concerns of the government's sources do not

undermine the position that their fears are justified or their unwillingness is real.

[Def.Br. at 27-28.] Finally, as Judge Williams has pointed out, even if informants were

willing to come forward, "that would not have negated the necessity of the wiretap to

gather evidence regarding the full scope of the enterprise." United States v.

Infelise, No. 90CR-87, 1991 WL 255628, at *9 (N.D. Ill. Oct. 18, 1991); accord, United

States v. Clark, Nos. 94-50062 & 94-50064, 1995 WL 453258, at *4 (9th Cir. Aug. 1,

1995)(table case)(citing cases).

68

In the informed, professional estimation of

Agent Barnett, a good deal of enterprise business was being orchestrated from or discussed

within the Club; related criminal activities were taking place at Gino's Tavern.²⁸

Efforts to penetrate the organization were being blocked by: 1) the clannishness of the

named interceptees and their associates; 2) their hesitance to accept or deal with

strangers; 3) the suspicion demonstrated when strangers entered the neighborhood; 4) their

occasional resort to communication in foreign dialects; and 5) their coded or abbreviated

record keeping. Such obstacles are often considered relevant when assessing the

sufficiency of the government's showing of necessity for clandestine interception. See

e.g., Smith, 31 F.3d at 1299; Farmer, 924 F.2d at 652; Zambrana, 841 F.2d at 1331-32;

United States v. Puglisi, 790 F.2d 240, 242 (2d Cir. 1986); Abou-Saada, 785 F.2d at 12

(Breyer, C.J.); United States v. Stevens, 800 F. Supp. 892, 906 (D. Hawaii 1992); United

States v. D'Aquila, 719 F Supp. 98, 107 (D. Conn. 1989); United States v. Sharif, No.

88-1071, 1989 AL 71457, at *1 (9th Cir. June 26, 1989)(table case); United States ##

_________________

²⁸ The defendant LaMantia does not specifically allege deficiencies in the

government's showing of necessity with respects the Gino's Tavern interception

application; neither is the court obliged to coax such an argument from his brief.

Nevertheless, it should be noted that both the government's application and the supporting

affidavit allege the ongoing and continuous involvement of the defendant and others in the

illegal activities linked to the tavern and the telephone located inside. Moreover,

Special Agent David Childre related his personal visit to Gino's Tavern, noting both its

tiny size (approximately 20' x 50',) the intense suspicion with which he was met by the

bartender, and the distinct possibility, in his informed professional opinion, that

attempts to infiltrate or use such alternative investigatory tools as clandestine video

surveillance could easily jeopardize the investigation in its entirety. [Def.Ex. 14 at

9-10, 42-43.] The agent likewise noted the inability of confidential informants to gather

additional information relevant to the investigation as it was then unfolding. [Def.Ex. 14

at 35-43.]

69

v. Gambale, 6~0 F. Supp. 1515, 1540 (D. Mass.

Eggs), aff'd sub nom. United States v. Angiulo, 847 F.2d 956 (1st Cir. 1988), cert. denied

sub nom. Cinotti v. United States, 488 U.S. 852 (l988). Agent Barnett likewise noted the

heightened sensitivity of the targets to physical surveillance: the targets and their

associates frequently cruised the neighborhoods looking for law enforcement vehicles or

strangers; video surveillance cameras were set at gambling Rites to monitor approaches to

the facilities; phone numbers were frequently replaced; tight restrictions were placed on

who could properly enter the subject premises; neighbors were unwilling to rent housing

near the Club to those with whom they were unfamiliar. The affidavit submitted by Agent

Barnett thus set forth a factual predicate easily sufficient to support his claim that

alternative "investigative procedures ha[d] been tried and failed or why they

reasonably appear[Ed] to be unlikely to succeed if tried . . . ." 18 U.S.C. §

2518(1)(c). See Smith, 31 F.3d at 1298-99; United States v. Van Horn, 789 F.2d 1492, 1497

(11th Cir. 1986), cert. denied, 479 U.S. 854 (1986); United States v. Lawson, 545 F.2d

557, 563 (7th Cir. 1975); Gambale, 610 F. Supp. at 1540.

The defendant LaMantia invokes the Fourth

Amendment to buttress his argument that the availability of alternative investigative

methods precludes the use of covert electronic interception, claiming a "requirement

that traditional investigative techniques be exhausted before instituting

wiretapping." [Def.Br. at 31.] As the defendant is well aware, however, "[t]he

Fourth Amendment, at least where warrants are concerned, does not incorporate a 'least

70

intrusive alternative' requirement."

Mancari, 663 F. Supp. at 4346. See also Anderson, 542 F.2d at 431. To suggest otherwise

"is, as a matter of law, simply wrong." Mancari, 663 F. Supp. at 1346."

^{_______________________________}

²⁹It is not immediately clear why

defendant's counsel insist on revisiting a point of law that has long been settled

adversely to their present position. In Dalia v. United States, 441 U.S. 254

(1979), the Supreme Court explained:

The Fourth Amendment requires that search

warrants be issued only 'upon probable cause, supported by Oath or affirmation, and

particularly describing the place to be searched, and the persons or things to be seized.'

Finding these words to be precise and clear, this Court has interpreted them to require

only three things. First, warrants must be issued by neutral, disinterested magistrates.

Second, those seeking the warrant must demonstrate to the magistrate their probable cause

to believe that the evidence sought will aid in a particular apprehension or conviction

for a particular offense. Finally, warrants must particularly describe the things to be

seized, as well as the place to be searched.

Id. at 255 (quotation marks and

citations omitted). Judge Getzendanner quoted this passage in United States v. Mancari,

663 F. Supp. 1343 (N.D. Ill. 1987), when defendant's counsel, the law firm of Genson and

Gillespe presented this same constitutional argument before her court, propped,

apparently, by many of the same cases on which the defendant currently relies. She

explained, [These supporting] opinions deal with the legality of police action in the

absence of a court order or involve challenges to wiretaps under the standards set forth

by Congress in Title III. The constitutional claim based on necessity is therefore

rejected.. Id. at 1346; see also Anderson, 542 F.2d at 431 ("It is immediately

apparent that [Section 2518] does not even require that any other investigative procedure

be tried first before an order is issued for the interception of wire

communications.")(quoting United States v. Whitaker, 343 F. Supp. 358, 362-63

(E.D. Pa. 1972), rev'd on other grounds, 474 F.2d 1246 (1973)(per curium) (reversing trial

court's suppression of wiretap evidence based on defendant's Fourth Amendment challenge to

Title III), cert. denied, 412 U.S. 953 (1973)). Judge Roszkowski also traced the

origins of the statutory "necessity" requirement for the benefit of defendant's

counsel, when he explained that the portion of the Omnibus Crime Control and Safe Streets

Act of 1968, Pub. A. 90-351, 82 Stat. 211 (1968) (codified as amended at 18 U.S.C. §§

2510-2520 (1982)) that eventually became 18 U.S.C. § 2518 was "enacted to satisfy

'the special facts' or 'exigent circumstances' requirement of Berger [v. United States,

388 U.S. 41 (1967)].. United States v. Costello, 610 F. Supp. 1450, 1465 (N.D. Ill.

1985). See S. Rep. No. 1097 at 72, 1968 U.S.C.C.A.N. at 2113 ("This proposed

legislation conforms to the constitutional standards set out in Berger v. New York

and Katz v. United States.")(citations omitted)). Judge Prentice Marshall

likewise addressed the legislative history of Section 2518, concluding: The Supreme Court

has decided several cases under Title III and has yet to express any doubt that the

statute (continued...)

71

One of the Special Attorneys

assigned to the instant case advised the authorizing judge that the intercepted

communications strongly suggested a breach in operational security. [Def.Ex. 2S at 2,

9/14/87.] Agent Barnett also indicated to the Judge that an article had appeared in a law

enforcement newsletter suggesting the possibility that the Club and its members were

widely considered likely targets for clandestine interception operations. [Def.Ex. 5 at

26-27.] At the very least, it is reasonable to assume that the appearance of such an

article in a semi-public forum would not have served to advance the goals of the

investigation. Nonetheless, the defendant alludes to previous efforts to penetrate the

organization with undercover operatives: "There is nothing in the affidavits to show

that the government could not repeat its efforts to infiltrate the alleged enterprise with

another undercover operative. r [Def.Br. at 30.] Irrespective of the defendant's

assessment of the success of those operations, his argument has been previously considered

and found wanting:

²⁹(...continued)

is sufficient to meet the constitutional objections raised in Berger and Katz [v.

United States, 389 U.S. 347 1967)]. . . . We agree with the overwhelming authority

that the statute is sufficient to meet the requirements of the Constitution and believe

that further discussion on the subject, already exhaustively treated elsewhere, would not

be helpful. . . . [T]he statutory requirements . . . may in fact be more restrictive than

the Constitution requires. United States v. Dorfman, 542 F. Supp. 345, 385 n.41

(N.D. Ill. 1982)(citing United States v. Ramsey, 503 F.2d 524, 531 (7th Cir.

1974)(Stevens, C.J.)("[E]ven if the statute is susceptible of unconstitutional

application, it does contain additional protections, not necessarily mandated by the

Constitution . . . .")).

72

The decision whether to employ an undercover

agent is a judgment which must be based on a current assessment of the circumstances and

an expertise in law enforcement gleaned from practical experience. This court does not

have the latter and, realistically, is probably unable to completely comprehend the

former. Given that, decisions which involve the personal security of those assisting the

government must be accorded great deference.

Mancari, 663 F. Supp. at 1349. The

defendant here makes no claim, nor can he, that undercover operatives would not face

enormous difficulty and personal risk in attempting to penetrate the subject enterprise.

An authorizing judge could reasonably conclude, based on the affidavits then before the

court, that discovery of an operative's mission or identity would be catastrophic to the

informant and doom the investigation by alerting those who were the targets of the

operation. United States v. Webster, 734 F.2d 1048,1054 (5th Cir. 1984), cert.

denied, 469 U.S. 1073 (1984);Infelise,1991 WL 255628 at *9-10. As the Court

of Appeals for the Eleventh Circuit pointed out, "This existence of danger is one of

the justifications for electronic surveillance." Van Horn, 789 F.2d at 1497.

There is simply no authority for the proposition that the government must jeopardize its

sources to adequately demonstrate necessity under Title III. Id.; Smith, 31 F.3d at

1300 ("[T]he government is not required to run 'outlandish risks' before requesting a

wiretap.")(citation omitted); Webster, 734 F.2d at 1054-55. Neither is there

any obligation on the part of the government to jeopardize other ongoing investigations by

reassigning confidential informants based on the possibility of developing more direct

evidence from speculative future relationships. See

73

Costello, 610 F. Supp. at 1468-69,

1471. "Post factum suggestions as to how an investigation might have been

handled should be entitled to little weight," United States v. Orozco, 630 F.

Supp. 1418, 1509 (S.D. Cal. 1986), either in a general analysis of Section 2518(1)(c)

compliance, or in the specific decision to utilize covert operatives. See Webster,

734 F.2d at 1055 (the court will not invalidate an authorization order simply because the

defendant's attorney is later able to suggest some investigative technique that might have

been used but was not); Hyde, 574 F.2d at 867 (same); United States v. Feldman,

535 F.2d 1175, 1178 (9th Cir. 1976)(same), cert denied, 429 U.S. 940 (1976); Costello,

610 F. Supp. at 1467-68 (same).

The defendant suggests that the assertions

contained in the affidavits are mere "boilerplate" and thus "violate[] the

principle that the showing of need for a wiretap must be particularized and specific to

the case at hand." [Def.Br. at 28.] If this is an attack on the "lack of

originality and lack of creativity in the draftsmanship" or shortcomings in the

"creativity of the writing," the argument is specious. Gotti, 771 F.

Supp. at 547; Gambale, 610 F. Supp. at 1537-37. Neither statute nor case law demand

that the "full and complete statement as to whether or not other investigative

procedures have been tried and failed or why they reasonably appear to be unlikely to

succeed if tried or to be too dangerous" be written with such relentless specificity

or originality of style that each one stands as a uniquely identifiable work. 18 U.S.C. §

2518(1)(c) (1996). Alternately, if this is a

74

suggestion that the facts of the

"case" or the collected elements of the defendant's offense are unique to this

malefactor, the defendant is mistaken. It defies logic, experience and case law to assume

that individual informants, operatives, victims or offenders would not voice similar

concerns, share similar difficulties, or occasionally perpetrate similar acts when faced

with similar problems. There is likewise no reason to believe that individual law

enforcement personnel involved in a three-year investigation would not experience similar

problems or arrive at similar conclusions during a single three- to four-month interval -

the subject period of the authorization orders. Compare Zambrana, 841 F.2d at

1330-32 (assessment of pre-interception status of overall investigation and grounds for

wiretap request) with United States v. Dennis, 786 F.2d 1029, 1035-37 (11th Cir.

1986) (same) and United States v. Gerardi, S86 F.2d 896, 898 (1st Cir. 1978)(same)

and United States v. DiMuro, 540 F.2d 503, 509-11 (1st Cir. 1976) (same), cert.

denied, 429 U.S. 1038 (1977) and Anderson, 542 F.2d at 431-32 (same) and Orena,

883 F. Supp. at 863 (same) and Mancari, 663 F. Supp. 1347-48 (same). See also

Costello, 610 F. Supp. at 1465 n.9 (collecting cases). Neither is it "surprising

that the factors necessitating electronic surveillance should be common to different

cases. What counts is whether the agent's assertions are supported by the facts in the

affidavit and the nature of the investigation being conducted." Dorfman, S42

F. Supp. at 399 (citations omitted); accord, United States v. Southard, 700

F.2d 1, 28 (1st Cir. 1983), cert. denied sub nom. Ferris v. United States,

75

464 U.S. 823 (1983). The Court of Appeals for

the First Circuit echoed the proposition set forth by Judge Marshall in United States

v. Dorfman when it explained that the reviewing court's role is not to make "a de

nova determination of sufficiency . . . but to decide if the facts set forth in the

application were minimally adequate to support the determination that was made."

Southard, 700 F.2d at 28. That burden has been carried here.

There are three points to be made with

respect to the cases on which the defendant relies. First, all of his cases are bottomed

on principles of law well-settled in this circuit and elsewhere. Second, the egregious

conduct that properly led the reviewing courts to suppress evidence in those cases is

absent in the case presently before this Court, as even a cursory review of the record

reveals. Third, an examination of those cases cited by the defendant illustrates the

prudence of granting substantial deference to an authorizing judge. Without access to the

full documentation originally set before the authorizing judges, in defendant LaMantia's

cited cases the parties to the current litigation are provided little clue as to the

proper "facts and circumstances" that must be "tested and interpreted . . .

in a commonsense and realistic fashion." Ventrasca, 380 U.S. at 108-09; Zambrana,

841 F.2d at 1329. Such summaries as are provided in the reported case opinions by the

reviewing courts in the cited cases present little opportunity for outside assessment of

the authorizing judges' decisions. Congress and the courts have apparently agreed that the

informed opinion of the authorizing judge should be accorded

76

"substantial deference." Id.

That policy should be respected in the instant case.

C. The Government Properly Minimized All Clandestine Wire

and Oral Interception" as Required both by the Authorizing Order and Title 18, united

States Code, Section 2518.

The defendant argues that the government

sought and received clandestine interception authorization and renewals to which it was

not entitled. He contends, loaned on Statistical evidence," that the court's initial

interception authorization, even if legally granted, quickly degenerated into an

"unparticularized electronic general search" of the type that the Fourth

Amendment and Section 2518(5) were designed to prohibit. [Def.Br. at 18-19, 21.] He

appears to suggest alternately that the authorization extensions were improperly granted

because: 1) the low percentage of pertinent conversations intercepted at the Club should

have forced the government to abandon a failed investigation; and 2) the government's

disregard of the court's directive to minimize intercepted communications during the

initial authorization period at the Club tainted all subsequent authorization orders.

[Def.Br. at 17-18, 20-22.] To remedy what he alleges is a "clear case of monitoring

abuse," the defendant proposes "suppression of all fruits" obtained at the

Club pursuant to the interception authorization orders. [Def.Br. at 21.] The defendant

also argues that because he was never a named interceptee at Gino's' Tavern, the

government "indiscriminately seized his conversations" at that site-conduct

falling "outside the scope of the warrants." [Def.Br. at 23-24.] He thus

petitions for suppression either of the Gino's

77

Tavern interceptions in their entirety, or at

a minimum, those conversations intercepted to which he was a party.

Section 2518(5), Title 18, United States Code

provides in relevant part:

No order entered under this section may

authorize or approve the interception of any wire, oral, or electronic communication for

any period longer than is necessary to achieve the objective of the authorization, nor in

any event longer than thirty days. . . . Extensions of an order . . . shall be no longer

than the authorizing judge deems necessary to achieve the purposes for which it was

granted and in no event for longer than thirty days. Every order and extension thereof . .

. shall be conducted in such a way as to minimize the interception of communications not

otherwise subject to interception under this chapter, and must terminate upon attainment

of the authorized objective, or in any event in thirty days.

18 U.S.C. § 2518(5) (1996). Congress has

provided the authorizing judge with discretion to require the government to provide status

reports during the life of an interception authorization "to show what progress has

been made towards achievement of the authorized objective and the need for continued

interception." 18 U.S.C. § 2518(6) (1996). In addition, an a"aggrieved

person," as defined in 18 U.S.C. § 2510(11) (1996), may move to suppress the

evidence obtained directly or derivatively by clandestine interception under three sets of

circumstances. " (i) the communication was unlawfully intercepted; (ii) the order of

authorization or approval under which it was intercepted is insufficient on its face; or

(iii) the interception was not made in conformity with the order of authorization or

approval." 18 U.S.C. § 2518(10)(a) (1996). Because the defendant does not challenge

the facial sufficiency of

78

the judge's authorizing order, his motion to

suppress can thus be based only on the first or third provisions of this subsection.

1. The Government has Established it. Prima Facie Case of

Reasonable Conduct.

It is settled that Section 2518 "does

not forbid the interception of all non-relevant conversations." Scott v. United

States, 436 U.S. 128, 139-40 (1978) ;30 United States v. Torres, 908 F.2d 1417,

1423 (9th Cir. 1990), cert. denied sub nom. Vickers v. United States, 498 U.S. 905

(1990); United States v. Clerkley, 556 F.2d 709, 716-17 (4th Cir. 1977)(~[T]he

legitimate investigation of conspiracies may necessitate the interception of all or almost

all communications over a given period of time."), cert. denied sub nom. London v.

United States, 436 U.S. 930 (1978); United States v. Armocida, 515 F.2d 29, 42

(3d Cir. 1975), cert. denied, 423 U.S. 858 (1975); Plescia, 773 F. Supp. at 1075;

Costello, 610 F. Supp. at 1477 ("The interception of some innocent, non-pertinent

conversations is 'inevitable.'")(citation omitted). In reviewing a defendant's claim

that his communications have been improperly

_________________

³⁰ Defendant Scott filed a pre-trial motion to suppress wiretap evidence. His

motion was predicated on the virtually uninterrupted monitoring and interception by law

enforcement officials of calls to and from a telephone registered to a co-defendant during

the life of their intercept authorization. The intercepted calls included those made to

obtain pre-recorded weather information, and seven conversations between that co-defendant

and her mother. United States v. Scott, 331 F. Supp. 233, 236, 247 48 (1971). The

court failed to find many discretion exercised by any agent at any time that resulted in .

. . nonrecordation.. Consequently, virtually all conversations were overheard and

recorded,. despite the fact that 40' of the intercepted communications were unrelated to

the subject criminal activity. Id. at 247. The district court's decision to suppress the

evidence was twice overturned by the appellate court for failure to apply the proper

standard in assessing the monitoring agents' compliance with Section 2518(5)- the

defendant was finally found guilty based in part on the intercepted wiretap

communications. The conviction was subsequently affirmed by the Supreme Court in Scott

v. United States, 436 U.S. 128 (l978)

79

seized, the focus of the court in reviewing a

defendant's claim should be on the conduct of the agents in monitoring the interceptions:

the court must assess "the facts and circumstances of each case" to determine

the reasonableness of the agents' conduct in protecting the privacy rights of the

speakers.³¹ Scott, 436 U.S. at 140; United States v. Ruggiero,

No. 83 CR-412, 1987 WL 8194, at *28 (E.D.N.Y. Mar. 19, 1987), aff'd, 928 F.2d 1289 (2d

Cir. 1991); Dorfman, 542 F. Supp. at 389-90. Factors to be considered by the court

in determining whether the government has established a prima facie case of

reasonable conduct in minimizing the non-pertinent interceptions include the nature and

scope of the criminal enterprise; the government's reasonable expectation of the contents

of particular calls; and the court's continuing supervision of the interceptions.

Quintana, 508 F.2d at 874_75;32 Infelise, 1991 WL 255628, at *13. Once the government has

set forth its prima facie case, the burden shifts to the defendant to persuade the court

that particular alternative procedures "would have better minimized

_______________

³¹ Many courts have upheld interception orders that contained no minimization

provisions whatsoever, in some cases anticipating by years the Supreme Court's explanation

in Scott v. United States, 436 U.S. 128 (1978), that it is the monitoring agents'

reasonable conduct that determines whether minimization was properly carried out. See.

e g.., United States v. Vento, 533 F.2d 838, 860-62 (3d Cir. 1976); United

States v. Cirillo, 499 F.2d 872, 878-90 (2d Cir. 1974); cert denied, 419 U.S.

1056 (1974); United States v. Manfredi, 488 F.2d 588, 598 (2d Cir. 1973), cert.

denied, 417 U.S. 936 (1974). See also Dorfman, 542 F. Supp. at 388 (same).

³² While the Court of Appeals'

holding in United States v Quintana pre-dates the Supreme Court's decision in Scott

v. United States, the reasoning of the two decisions is nevertheless in harmony. Compare

Scott 436 U.S. at 139 42 (discussion of relevant factors in assessment of whether

monitoring agents acted reasonably) with Quintana, 508 F.2d at 874-75 (listing

factors relevant to a determination of whether "the government has done all that it

could to avoid unnecessary intrusion".)

80

interception of noncriminal conversation

while still permitting the government to achieve its legitimate objectives."Quintana,

508 F.2d at 875 (citing cases); United States v. Manfredi, 488 F.2d 588, 600 (2d

Cir. 1973), cert. denied, 417 U.S. 936 (1974); United States v. Ishola, No.

95CR 523, 1996 AL 197461, at *5 (N.D. Ill. 1996); Infelise, l99l WL 255628 at

*13-15.

a. The Nature and Scope of the

Criminal Enterprise. The defendant has never disputed the goal of the

government's investigation, stated and reaffirmed in every application and affidavit

offered before the issuing judge: the discovery of the full extent of a widespread

criminal enterprise and the prosecution of its leaders. See Scott, 436 U.S. at 140

("[W]hen the investigation is focusing on what is thought to be a widespread

conspiracy more extensive surveillance may be justified in an attempt to determine the

precise scope of the enterprise."); accord, Quintana, 508 F.2d at 874. Neither

has he challenged the government's allegation that the target enterprise is involved in a

longstanding and extensive range of illegal activities including violence, extortion, and

gambling. The government has never alleged, nor does it believe, that the target criminal

activities are "small time," are "operated more openly than most

[operations] and with less care in terms of evading detection," United States v.

Lilla 699 F.2d 99, 104 (2d Cir. 1983), or that any of the government's sources are

"both willing to testify and halve] great potential for uncovering the entirety of

the conspiracy under investigation." United States v. Simpson, 813 F.2d 1462,

1471 (9th Cir. 1987). See also United States v. IppoIito, 774

81

F.2d 1482, 1483-84 (9th Cir.

198s)(confidential informant characterized by the F.B.I. as the defendant's "right

hand man" was familiar with the entire conspiracy). The defendant does not apparently

disagree with the government's assessment: much of the force of the defendant's memorandum

in support of his motion to suppress is spent attacking the informants' lack of a

"basis of knowledge," their lack of f current information" and their

inability to provide "specific reliable information" about the inner workings or

extent of the enterprise. tDef.Br. at 7-8.] Where the defendant does not challenge the

accuracy of the characterizations contained in the affidavit, the court will take the

characterizations as true for purposes of its decision. See Dorfman, 542 F. Supp.

at 37S-76 & n. 28.

The Circuits are in widespread agreement that

the government's resort to clandestine interception is a reasonable means to achieve the

goals of the investigation where, as here, the government reasonably believes that the

subject "crimes are being committed by large and sophisticated organizations." United

States v. Leavis, 853 F.2d 215, 221-22 (8th Cir. 1988). See e.g.:, Van Horn,

789 F.2d at 1498; Clerkley, 556 F.2d at 716-17; United States v. Chavez,553

F.2d 491, 493-94 (9th Cir. 1976), cert. denied, 426 U.S. 911 (1976); United

States v. Steinberg, 525 F.2d 1126, 1131 (2d Cir. 1975), cert. denied, 425 U.S. 971

(1976); Quintana, 508 F.2d at 874; United States v. James, 494 F.2d 1007,

1019-20 (D.C. Cir. 1974), cert. denied sub nom. Jackson v. United States,

419 U.S. 1020 (1974); Manfredi, 488 F.2d at 599-600; United States v. Cox, 462 F.2d

1293,

82

1300-01 (8th Cir. ,972), cert. denied,

.17 U.S. 918 (1974); Suquet, 547 F. Supp. at 1036-37. Cf. Infelise, 1991 WL

255628 at *13, 16 ("Defendants cannot choose to align themselves with a complex . . .

criminal enterprise and then object to the government's efforts to gather evidence

establishing the full extent of the enterprise's criminal activities . . .

.")(citation omitted).³³ There is also agreement that what is considered

"reasonable" conduct in protecting the privacy rights of the intercepted

speakers should not be recalculated "with the benefit of hindsight"; rather the

court should attempt to assess the minimization "in light of the circumstances as

they existed at the time of the interceptions." Ruggiero, 1987 WL 8194 at *28

(citation omitted); accord, Cox, 462 F.2d at 1301. See also United States v.

Willis, 890 F.2d 1099, 1101-02 (10th Cir. 1989)(0f 1643 intercepted calls, 163 were

minimized; none of the eight calls involving the defendant, of which two were pertinent,

were minimized); United States v. Losing, 560 F.2d 906, 908-08 (8th Cir.

1977)(Approximately 66t of 1208 interception conversations were non-pertinent, but only 79

to 81 calls were minimized. Suppression was not granted.), cert. denied, 434 U.S. 969

(1977); United States v. Scott, 516 F.2d 751 (D.C.Cir.1973)(virtually no

minimization whatsoever), aff'd, 436 U.S. 128

__________________

³³ An authorizing judge, assessing the facts and circumstances presented in

this case, including the extensive evidence gathered from telephone pen records and trap

and trace devices, could also reasonably conclude that clandestine interceptions were

appropriate where telephones are "routinely relied on to conduct the criminal

enterprise under investigation". Steinberg, 525 F.2d at 1130; accord, Smith,

31 F.3d at 1299; Anderson, 542 F.2d at 432 (quoting United States v. Bobo,

477 F.2d 974, 982 (4th Cir. 1973)).

83

(1978); Quintana, 508 F.2d at 873-74

(all calls from two telephones intercepted during initial 20-day period, of which 7.5%

were considered "germane" enough to transcribe and only 47, or 2.4%, were used

at trial)(citing cases); Manfredi, 488 F.2d at 599-600 (150 out of 1593 intercepted

calls were possibly pertinent but "all calls incoming or outgoing over the two

telephones involved were monitored and recorded irrespective of the identity of the

parties engaged in the conversation"); Ishola, 1996 WL 197461 at *5 (only 305

out of over 6000 intercepted calls minimized: "Given the large scope of the alleged

conspiracy and the large amount of 'short calls,' the government's effort to minimize was

reasonable."); Suquet, 547 F. Supp. at 1044-46 (of 910 intercepted calls, only

31% were minimized and only 16% were considered pertinent). As the Court of Appeals in

this Circuit has explained, "When the investigation is of a suspected large-scale

conspiracy, and when the suspects speak in veiled terms, the government is justified in

intercepting conversations that eventually prove to be without the scope of the Title III

authorization." Williams, 737 F.2d at 605.

b. The Expected Contents of

Particular Calls. A second factor considered by the courts in assessing

efforts to minimize the interception of non-pertinent communications is "the

government's reasonable expectation of the contents of particular calls." See

Quintana, 508 F.2d at 874; accord, Angiulo, 847 F.2d at 979 (citing

cases); Armocida, 515 F.2d at 44. The government's expectation of the contents of

the intercepted communications may be affected by: 1) the phase of the investigation in

which communications are being

84

intercepted; 2) the government's awareness

(or lack thereof) of the identities of the offenders and their confederates; 3) the

location of the bug or tapped telephone; 4) the known presence or absence at various times

of day of various identified conspirators; 5) the extent and scope of the subject criminal

activities; 6) the experience of the monitoring agents and their familiarity with the

investigation; and 7) the possible emergence of a recognizable pattern of innocent

communications. See Scott, 436 U.S. at 139-42; Willis, 890 F.2d at 1102; Van

Horn, 789 F.2d at 1501; Clerkley, 556 F.2d at 716-17; Quintana, 508 F.2d at

874-75; Ishola, 1996 WL 197461 at *5; Infelise, 1991 WL 255628 at *13; Ruggiero,

1987 WL 8194 at *28; Costello, 610 F. Supp. at 1474-77; Suquet, 547 F. Supp.

at 1037; Hoffman, 542 F. Supp. at 390-92 (citing numerous cases). Awareness of such

facts permits the government to "tailor it" minimization efforts" to avoid

interception of calls that are presumed to be non-pertinent. Quintana, 508 F.2d at

874 (quoting James, 494 F.2d at 1020).

Interceptions made in the early phases of

clandestine surveillance operations are generally considered less subject to the

strictures of minimization because monitoring agents are attempting to map the

"contours" of the conspiracy and identify its unknown participants. Quintana,

508 F.2d at 874. See Chavez, 553 F.2d at 493-94; Dorfman, 542 F. Supp. at

391. Moreover, it is often unclear precisely what conversations are relevant. Some

communications seem immediately germane:

Did ya do-did you get it?

85

I got 'em, delivered 'em, I got to go collect

now. I'd like to grab Yooko [phonetic]. He still owes me, that son of a bitch.

Well, why didn't ya?

Where am I going to get him? Is he working

tonight?

Yes.

Maybe I'll stop in after I drop you off.

[Def.Ex. 25 at 3, 9/23/87.] In the context of

illegal gambling, extortion, and collection of "street tax," phrases such as

"I got to go collect now," "You have to pay tax," "He wanted you

to put 300 on the Bulls . . . cash man, n there is a parley in the 3rd race #2, 8 to

win," and "Somebody down here booking $100 bets" have immediate resonance.³⁴[Gino's

Tavern Status Report 3/24/88; 3/28/88; and 4/8/88.] Similarly, some communications are

clear in their import and free from any trace of ambiguity, despite technical problems

encountered in their interception:

This guy [Unintelligible] we want our fuckin'

money that's what

___________________

³⁴ Recorded references to Two g's of the girl and one g of the boy,'

"smokers," "shooters," and sources with the capability to deliver

narcotics in quantities of up to 20 kilograms similarly suggest the reach of the

organization into a wide range of illegal activities.[Gino's Tavern Status Report 3/28/88

at 15-16.] Interceptions such as this reaffirm the government's right and obligation to

establish the full extent of the criminal behavior, including-the identities of other

co-conspirators and victims. As the Court of Appeals for the Third Circuit stated,

"[I]t is unrealistic to require the termination of an investigation before the entire

scope of the [target] . . . network is uncovered and the identity of its participants

learned". United States v. Armocida, 515 F.2d 29, 42 (3d Cir. 1975), cert.

denied, 423 U.S. 858 (1975); accord, United States v. Daly, 535 F.2d 434, 438 n.3

(8th Cir. 1976); United States v. Cantu, 625 F. Supp. 656, 673 (N.D. Fla. 1985),

aff'd, 791 F.2d 940 (11th Cir. 1986). In the instant case, the authorizing judge was

promptly notified of this evidence of other crimes.

86

you tell him, we want ours and I don't give

two fucks what you do, [unintelligible] tell him [unintelligible] that other guy is going

to come see ya and he'll want this motherfucker the next day, you do what you have to . .

. you are too fuckin' nice to him [unintelligible] in his tucking car you know how much

money he owes us.

. . . .

[Whispers] [unintelligible] you tell this

fuckin' Jew ain't nobody could ever be, be more replaceable.

. . . .

Have Kurt and [Unintelligible] knock the shit

out of him. [Unintelligible] we don't get shit, I can't knock that fucking figure down,

take another fuckin' year and a half. [pause] I don't understand it. Well, fuck this

motherfucker.

[Club Status Report 12/7/87.] The relevance

of other communications may be more difficult to assess, in part because coded terms have

not yet been identified, let alone deciphered: over the Club telephone, for instance, one

party advised another, "Don't talk on there." A second party replied, "No,

I, um, (pause), I'm sure you're very capable of . . . of my-brain. I have some stuff I

have to give her. . . . I can't walk up her steps. . . . Before she goes to the hospital.

I have that typewriter stuff for her kid at school." [Def.Ex. 25 at 2, 9/14/87.]

Without belaboring the obvious, it would be difficult for a monitoring agent, listening

this brief exchange unfold, to quickly determine whether two parties are engaging in

benign pleasantries or are attempting to relay information far more sinister. See

United States v. Figueroa, 757 F.2d 466, 469-70 (2d Cir. 1985)("clothes,"

"two pairs of shoes" and "one shirt referred to various quantities of

drugs); United States v. Forte, 684 F. Supp. 1288, 1291 (E.D. Pa.. 1988)("one

of those

87

things" or "one thing"

referred to a pound of methamphetamine).

It would also be unreasonable to assume that

monitoring agents possess an immediate ability to recognize a speaker by his or her voice:

where the identities of potential co-conspirators are unknown, "the monitoring agents

[cannot] assume that certain conversations with certain individuals would clearly be

irrelevant." Clerkley, 556 F.2d at 717. In the instant case, speakers often

used only their first names, used numerous nicknames or code names, or failed to identify

themselves altogether: for instance, "Gino, this is 26" and "The guy with

the cigar, you know." [Club Status Reports 3/28/88; Gino's Tavern Status Report

4/8/88.] Thus, it was often unclear whether an intercepted was a one-time caller placing a

bet or a co-conspirator. See Infelise, 1991 WL 255628 at *12-13. The challenge of

anticipating the contents of a particular conversation is aggravated when, as here,

numerous agents were involved at several sites. Particularly where intercepted exchanges

are brief, it would not be unreasonable to assume that only the most experienced and

knowledgeable agents could correctly characterize a conversation and respond appropriately

before its termination: "agents are not gifted with prescience and cannot be expected

to know what direction the conversation will take." Cox, 462 F.2d 1301; accord,

Dorfman, 542 F. Supp. at 389. See Scott, 436 U.S. at 140, 142; Wilson,

835 F.2d at 1445-46 ("The fact that the monitored conversations often started with

discussion of non-criminal matters did not require the government to plug its

ears."); Chavez, 533 F.2d at 494

88

The Supreme Court has explained that

"[t]he type of use to which the telephone is normally put may . . . have some bearing

on the extent of minimization required." Scott, 436 U.S. at 140. In the

instant case, the subject telephone was situated in a building the government reasonably

believed housed "an organization that provides the Southside [organized crime] Outfit

with a safehouse for criminal activity operating under the guise of a community oriented

Italian American Organization." [Def.Ex. 2 at 88.] Access to this private club was

"strictly controlled." [Def.Ex. 2 at 87.] Many of those frequenting the Club, as

Agent Barnett indicated in his affidavit, were reasonably believed to be tied to organized

crime. The government also had evidence that: the defendant himself "use[d the

subject] telephone to discuss gambling and juice loan collection matters"; other

parties "had occasion to discuss gambling related matters as well as other organized

crime related matters . . . utilizing this telephone"; telephones in the Club and at

Gino's Tavern were routinely utilized in furtherance of criminal activities; and a private

telephone in the club was "set aside to discuss 'Outfit' business such as 'juice

collection' and illegal gambling related matters." [Def.Ex. 2 at 80, 83, 88; Def.Ex.

14 at 14-37 .] Based solely on these limited "facts and circumstances," an

authorizing judge could reasonably conclude that the government had no basis to anticipate

a "pattern of innocence" with respect to the intercepted communications.

Suquet, 547 F. Supp. at 1037. See Van Horn, 789 F.2d at 1501; Dorfman,

542 F. Supp. at 391 ("[T]he location where the wiretap was being conducted was a

legitimate

89

business with well over one hundred employees

"). It would thus not have been unreasonable "to monitor all calls for some

time." Quintana, 508 F.2d at 874. See Scott, 436 U.S. at 141

("During the early stages of surveillance the agents may be forced to intercept all

calls to establish categories of non-pertinent calls which will not be intercepted

thereafter."); Suquet, 547 F. Supp. at 1037. Even if a defendant discovers a pattern

of innocent communications that have been intercepted, the scrutiny does not end:

"[I]t is extremely unlikely that there is any obligation to minimize any call that is

made between suspected co-conspirators, even if a pattern of innocence has developed in

their conversations. At any moment, the pleasantries might cease and the business

begin." Suquet, 547 F. Supp. at 1037 (citing cases); United States v;

Wilson, 835 F.2d 1440, 1445-46 (D.C. Cir. 1987); Armocida, 515 F.2d at 45; Plescia,

773 F. Supp. at 1075; Costello, 610 F. Supp. at 1477. Consequently, an authorizing

judge could have concluded, based on a "commonsense and realistic" assessment of

the totality of the "facts and circumstances," that the government was acting

reasonably even if "none of these conversations turned out to be material to the

investigation at hand." Scott, 436 U.S. at 140, 143; Ventrasca, 380

U.S. at 108-09; Cox, 462 F.2d at 1301.

c. Continuing Judicial Oversight. The

exercise of continuing judicial oversight during the life of the authorization order is

the third factor used to assess the government's reasonable efforts to protect the privacy

rights of the speakers. Quintana, 508 F.2d at 875; Infelise, 1991 WL 255628

at *14. Congress has granted the

90

authorizing judge discretion to require the

government to submit status reports "at such intervals as the judge may require"

in order to ascertain the progress made by the government in achieving "the

authorized objective and the need for continued interception." 18 U.S.C. § 2518(6).

By the terms of the statute itself, however, authorization orders and extensions are

issued for a period "that the authorizing judge"- not the defendant's attorney

-"deems necessary to achieve the purposes for which it was granted." 18 U.S.C.

§ 2518(5).

In the instant case, the authorizing judge

exercised that discretion, requiring the government to issue status reports at five-day

intervals during the life of each authorization or extension. See Ozar, 50 F.3d at

1443 (weekly status reports); Hyde, 574 F.2d at 860 (15-day intervals between

reports); Clerkley, 566 F.2d at 718 (5-day intervals); Steinberg, 525 F.2d

at 1131 (same); Quintana, 508 F.2d at 875 (same); United States v. Marcy,

777 F. Supp. 1400, 1405 (10-day intervals); Cortese, 568 F. Supp. at 123 (5-day

intervals). The government supplemented the status reports with copies of the monitoring

agents' interception logs, thereby providing a means to scrutinize the progress of the

operation if the court felt it necessary. Marcy, 777 F. Supp. at 1405; Infelise,

1991 WL 255628 at *13. In addition, each agent attached to his or her logs a summary sheet

that indicated which, if any, of the named parties had been intercepted during that watch;

the names of other identified individuals intercepted; the total number of interceptions

(both incoming and outgoing); the number of

91

communications intercepted that the agents

themselves deemed pertinent; and the number of communications minimized. Such support

documentation thus provided the authorizing judge with complete, accurate and

contemporaneously recorded information tracking the volume of calls intercepted, the

number considered pertinent, and the ongoing compliance by the agents with the court's

minimization directives. See Ozar, 50 F.3d at 1447; Torres, 908 F.2d at

1423; Marcy, 777 F. Supp. at 1404-05; Dorfman, 542 F. Supp. at 391-92.

Where, as here, the authorizing judge is positioned to exercise substantial oversight

during the course of the clandestine interceptions, reviewing courts "have been more

willing to find a good faith attempt at minimization." Clerkley, 556 F.2d at

718. See Clark, 1995 WL 453258 at *5-6; Angiulo, 847 F.2d at 979-80; Van

Horn, 789 F.2d at 1501-02; Hyde, 574 F.2d at 869-70; Quintana, 508 F.2d

at 875; James, 494 F.2d at 1007; Cox, 461 F.2d at 1301; Infelise,

1991 WL 255628 at *13-14; Marcy, 777 F. Supp. at 1405; Gambale, 610 F. Supp. at 1528-29;

Cortese, 568 F. Supp. at 123-24.

2. The Government Properly Minimized Intercepted

Communications Pursuant to all Authorization Order.

The defendant argues that the government

disregarded the directive in the authorizing order to conduct the clandestine operation

"in such a way as to minimize the interception of communications not otherwise

subject to interception under this chapter." 18 U.S.C. § 2518(5) (1996). He alleges

that this "clear case of monitoring abuse" reduced the authorizing order to a

"general warrant," prohibited by the Constitution and Section 2518. His position

is understandable, because his objections are

92

predicated on a flawed analysis of the

"statistical evidence" he marshals in his brief.

It is true, as the defendant asserts, that a

total of 105 out of 222 of all communications intercepted during the initial interception

period at the Club were minimized. [Def.Br. at 20.] It is likewise true, as the defendant

suggests, that the government labeled only 10 of those initial interceptions

"pertinent." Without more, however, it is not true in any Circuit that all of

the 222 intercepted communications were subject to the minimization requirements of

Section 2518(5). In part, this is because the obligation to minimize intercepted

communications between known conspirators is seriously qualified by the possibility that

they are engaged in criminal activity. See Suquet, 547 F. Supp. at 1037 (citing

cases); Wilson, 835 F.2d at 1445-46; Armocida, 515 F.2d at 45; Costello,

610 F. Supp. at 1475-77 ("section 2518(5) permits the government to 'spot check' even

innocent conversations to determine whether the subject of the conversation has

shifted."). In equal part, however, this is because telephone calls of brief duration

do not provide a monitoring agent with an opportunity to accurately characterize the

nature of the interceptions before the call is terminated, particularly if the language is

coded or guarded. As the Supreme Court explained, "[A]gents can hardly be expected to

know that the calls are not pertinent prior to their termination." Scott, 436 U.S. at

140. Decisions handed down in the wake of the Supreme Court's holding in Scott v.

United States have often settled on a period between two and three minutes:

communications

93

intercepted of briefer duration are generally

considered too short to minimize. See. e.g., Clark, 1995 WL 453258, at *5-6

("short duration" calls not subject to minimization defined as two minutes or

less); Ozar, 50 F.3d at 1447-48 (interception cycles of two- minutes on/one minute

off not violative of minimization requirements); United States v. Homick, 964 F.2d

899, 903 (9th Cir. 1992)(listening to all calls for two-minutes or less irrespective of

relevance did not violate minimization requirements); United States v. Mesa-Rincon, 911

F.2d 1433, 1442 (lOth Cir. l990)(citing with approval Losing, 560 F.2d at 909 n.l);

Willis, 890 F.2d at 1102 (2-3 minutes); United States v. Malekzadeh, 855 F.2d

1492, 1496 (l1th Cir. 1988)(two minutes), cert. denied sub nom. Shayanfar v.

United States, 489 U.S. 1024 (1989); Losing, 560 F.2d at 908-09 (2-3 minutes); Ishola,

1996 WL 197461 at *5 (two minutes); Plescia, 773 F. Supp. at 1075 (failure to

minimize non-pertinent calls of "about two minutes or less" is not

"objectively unreasonable"); Ruggiero, 1987 WL 8194 at *8, 27, 29-30

(two-minute "rule"); Costello, 610 F. Supp. at 1475-76 (2-3 minutes). But

see United States v. Hinton, 543 F.2d 1002 (2d Cir. 1976)(monitoring all calls for

a maximum of five minutes not unreasonable where interceptees frequently communicated in

code and where discussions initially personal often turned later to criminal conduct),

cert. denied sub nom. Bates v. United States, 429 U.S. 1066 (1977). In the instant

case, the initial Club interception status reports were submitted to the court on or about

September 8, 14, 18, 22, and 28, 1987: they indicated inter alia the total number

of

94

intercepted communications (30, 59, 44, 37,

and 52 respectively); 2) the total number of minimized communications (11, 30, 20, 19, and

25 respectively]; 3) and the total number of conversations the government considered

"pertinent" (2, O. 3, 3, and 2 respectively).³⁵ [Def.Ex. 25.] Even a

superficial review of the accompanying interception logs would have revealed, however,

that only 87 of the 222 calls intercepted at the Club during the first month of the

operation lasted over two minutes: only these calls would be subject to minimization under

the two minute "rule" utilized in cases across the Circuits. Of the 87 calls

intercepted that lasted over two minutes, monitoring agents minimized 68 conversations 78%

irrespective of other factors that would reduce the total number of call subject to

minimization such as pertinence or the identities of the interceptees.³⁶ See

Ozar, 50 F.3d at 1447-48 (57% minimization rate was not unreasonable given the

________________

³⁵ See supra note 4. 36 Interception status reports from the wire and oral

interceptions at Gino's Tavern were likewise submitted to the court at five-day intervals,

and reveal similarly high rates of minimization. Pursuant to the first authorization

order, 206 telephone calls of two minutes or longer were intercepted: 155, or 75%, were

minimized. Exempting from that total 15 calls over two minutes considered pertinent and

therefore not subject to minimization, the minimization rate during the first month at

Gino's was 86% for wire interceptions. Similarly, of 239 telephone calls over two minutes

intercepted pursuant to the second authorization order, 68% were minimized; subtracting 51

pertinent calls over two minutes not subject to minimization, the rate during the second

month was 87%. During the third period challenged by the defendant, 199 calls of two

minutes or greater were intercepted, of which 44 were considered pertinent Of the 155

calls potentially subject to minimization, therefore, 126 calls, or 81%, were minimized.

None of these rates take into account additional exemptions based on communications

between identified co-conspirators.

95

complexity of the investigation and the

court's continuing supervision); accord, Angiula, 847 F.2d at 979-80. See also Clark,

1995 WL 453258 at *6 (28% minimization rate not unreasonable where 65% of the

non-pertinent, non-minimized calls lasted less than two minutes); Smith, 909 F.2d

at 1166 (30% minimization rate not unreasonable where agents were provided with

minimization guidelines); Willis, 890 F.2d at 1102 (70% minimization rate); Wilson,

835 F.2d at 1446 (16% minimization rate); United States v. Apodaca, 820 F.2d 348,

350 n.3 (lOth Cir. 1987)(17% minimization rate after incomplete and short calls, and calls

to pager service subtracted), cert. denied, 484 U.S. 903 (1987); Costello,

610 F. Supp. at 1476 (80% minimization rate); Suquet, 547 F. Supp. at 1044-46 (69%

minimization rate). Even this two minute "rule" must be applied flexibly,

however: as the Court of Appeals for the District of Columbia reminded the defendant in

that case, the Supreme Court has directed that the standard guiding a review of the

government's minimization compliance "is one of reasonableness." Wilson,

835 F.2d at 1445 (citation omitted). If a defendants' calls are short and frequently begin

innocently before turning to criminal matters, insistence that an agent terminate

interception after a fixed time "would create a privileged sanctuary for illegal

conversations." Id. at 1446; accord, Hinton, 543 F.2d at 1012. The

defendant's contention that the government engaged in a "pervasive lack of

minimization" in its oral interceptions at the Club, and that its conduct of the

operation was "objectively unreasonable" likewise cannot be sustained. [Def.Br.

at 21.] The

96

minimization rate during the initial phase of

the operation fell well within the ambit of both the statute and the interpreting case

law, in the Seventh Circuit and elsewhere. It is recognized that minimization of

conversations intercepted by hidden microphones -bugs is more difficult than wire

interception: the Fourth Circuit Court of Appeals' analysis in United States v.

Clerkley is instructive. 556 F.2d at 711-17. Law enforcement personnel had installed a

bug at the defendant's place of business. Because all participants in the gambling

conspiracy had not been identified, law enforcement officials conducted "continuous

monitoring" in the subject premises whenever any of three business partners were

present. Id. at 712, 717. The defendants appealed their conviction, claiming inter

alia that continuous monitoring violated the minimization requirements of Section 2518(5).

The court affirmed, explaining:

Telephone taps enable police to divide

communications into discrete units, which can then be assessed on an individual basis. If

a call is personal in nature, interception may cease, subject to resumption when another

call is initiated. Electronic eavesdropping does not allow this degree of selectivity.

Conversations may range over many subjects, shifting instantaneously and without warning.

Because of this uncertainty, we cannot say that anything less than continuous monitoring

would suffice.

Id. (footnotes omitted). It has

likewise been noted that individuals engaged in face to face communications

"ordinarily do not begin by identifying one another." Costello, 610 F. Supp. at

1474. When communications are intercepted by hidden microphone, transmission and

interception problems are aggravated: high ambient

97

noise levels; poor room acoustics; greater

distances between speakers and microphones; the tendency of the interceptees to move about

the room or be joined by unidentified confederates during their conversations; and the use

by the speakers of non-verbal cues and hushed tones all serve to increase the difficulty

of minimizing oral interceptions. Costello, 610 F. Supp. at 1474. Moreover, the use

by defendants of code or jargon when communicating has "traditionally allowed a

greater degree of monitoring" than might otherwise be the case. Clerkley, 556

F.2d at 718 n.5.

In the instant case, clandestine oral

interceptions were conducted by law enforcement personnel far more conservatively than

those involved in Clerkley. See Cortese, 568 F. Supp. at 124 ("The government has

indicated that 585 microphone interceptions were made and that minimization was also

effected with regard to those communications.). An authorizing judge reviewing the status

reports submitted at five-day intervals would have seen, that 63' of all intercepted

communications were minimized pursuant to the first authorization order. An authorizing

judge reviewing the second set of status reports would have seen that of 1577

communications intercepted, monitoring agents reported 1316 minimization's (83%); for the

third authorization period, 1214 communications were intercepted, and 1003 minimizations

(82%) were reported.³⁷ Nevertheless, many of the intercepted communications

__________________

³⁷ The oral communicationsinterception minimization rate at Gino's Tavern

reveals a similar pattern. Of 800 intercepted oral communications reported pursuant to the

first authorization order, agents reported 762 minimizations (95%); of 755 intercepted

(continued...)

98

were inaudible, as a review of either the

status reports or the supplementary interception logs reveals. The difficulty of

intercepting whispered or guarded communications was aggravated by high ambient noise

levels in the Club and at Gino's Tavern: a video game at Gino's, and a television, a

radio, and furnace noise during this mid-winter period at the Club reduced to inaudibility

"the vast majority of conversations intercepted." [Club Status Report 11/20/87.]

See Costello, 610 F. Supp. at 1475-76. Further, communications between interceptees was

often guarded, in code, and occasionally in foreign languages. Angiulo, 847 F.2d at 979;

Infelise, 1991 WL 255628 at *13.

The government conducted the clandestine

interceptions in complete compliance with the statutory directives of Section 2518; the

government's conduct likewise falls well within the arc of case law interpreting Title

III. mere has been no failure to abide by the strictures of either the statute or the

court orders; there has likewise been no reduction of the authorization orders to a

"general warrant." me defendant's bald assertion, unsupported by case law or

fact, that the indictment must be dismissed because "illegally obtained interception

evidence and/or evidence derived therefrom was presented to the grand jury is similarly

without merit. me burden now shifts to the defendant to suggest alternative procedures

that "would have better minimized interception of non-criminal

_____________

³⁷(...continued)

communications reported pursuant to the second oral interception order, agents reported

674 minimizations (891). The government did not seek authorization for oral interceptions

during the third period challenged by the defendant.

99

conversation while still permitting the

government to achieve its legitimate objectives." Quintana, 508 F.2d at 875

(citing cases); Manfredi, 488 F.2d at 600; Ishola, 1996 WL 197461 at *5; Infelise,

1991 WL 255628 at *13-15.

3. The Government Properly Intercepted the Defendant's

Communications at Gino's Tavern.

The defendant argues that because he was

never a named intercepted at Gino's Tavern, "the court orders for Gino's Tavern did

not empower government agents with authority to intercept [the defendant's] conversations.³⁸

He alleges that these interceptions fell "beyond the scope of the warrants,"

thereby requiring suppression of those conversations. The defendant's arguments, however,

have been addressed and resolved with finality against defendant LaMantia's present

counsel by prior courts. See. e.g.;, United States v. Marcy, 777 F. Supp.

1400 (N.D. Ill. 1991); United States v. Costello, 610 F. Supp. 1450 (N.D. Ill.

1987).

In United States v. Costello,

LaMantia's present counsel suggested inter alia that the government's alleged

"failure to properly minimize its interceptions of oral communications" and its

reliance on the statutory term of art "others as yet unknown" reduced the

authorizing judge's interception order to impermissible 'general warrant.'" 610 F.

Supp. at 1472-73. Similarly, in United States v. Marcy, defendant LaMantia's

present counsel suggested that reliance by the government on an allegedly

______________

³⁸ Although not named as an anticipated intercepted, defendant LaMantia was

named as a member of the enterprise in the affidavit, application and order.

100

insufficient first authorization based on

"sparse, vague, and dated" evidence tainted subsequent authorizations and

required the suppression of evidence directly and derivatively obtained therefrom. 777 F.

Supp. at 1401. Neither Judge Aspen nor Judge Roszkowski found LaMantia's present counsel's

arguments compelling, citing many of the same cases in addressing and dismissing

defendant's arguments. See. e.g., United States v. Martin, 599 F.2d 880, 884-85

(9th Cir. 1979); Dorfman, 542 F. Supp. at 377-78 n.30. See also Suquet, 547

F. Supp. at 2038-39 (defendants alleged a "warrantless general search" rather

than attempting to demonstrate a pattern of wrongful interceptions on the theory that such

searches are void ab initio, thereby tainting all interceptions). As Judge Aspen

instructed defendant LaMantia's present law firm in addressing the absence of the

defendant's name as a target intercepted on the authorizing order, a [T]he government had

no obligation even to name [the defendant] in the application." Marcy, 777 F.

Supp. at 1402 (citing United States v. Donovan, 429 U.S. 413, 435-38 (1977)); accord,

Costello, 610 F. Supp. at 1473. Where there is probable cause for the issuance of an

interception order with respect to any of the named parties, an unnamed party's

conversations may be seized if they contain evidence of criminality. Reading the affidavit

as a whole, there is sufficient probable cause in the instant case to find that the

interception order should have been issued, and consequently, that the defendant's

conversations were properly intercepted. See Section A supra; Figueroa,

757 F 2d at 470-71; Marcy, 777 F. Supp. at 1402; Costello, 610 F. Supp. at

1472-77.

101

The defendant cannot support his claim that

the authorization order was reduced to a general warrant, either by alleging the

government's failure to adhere to the minimization requirements, or by failing to name the

defendant as an intercepted at Gino's. Infelise, 1991 WL 255628 at *14-15; Suquet, 547 F.

Supp. at 1040-43. The authorizing orders indicate with sufficient particularity the

location, the parties, and the type and subject matter of conversations to be seized

pursuant to the intercept authorization. They likewise indicate the defendant's

involvement in the target enterprise. See Costello, 610 F. Supp. at 1472-73; Suquet, 547

F. Supp. at 1041-44.39 The defendant's claims are without merit. They should be dismissed.

IV. CONCLUSION

WHEREFORE, the government respectfully

requests this court to deny the defendant's motion to suppress evidence obtained directly

and derivatively from properly issued and narrowly utilized clandestine wire interception

orders; deny his motion for a minimization hearing pursuant to Title 18, United States

Code, section 2518 (1996); and deny his motion to dismiss the indictment.

Respectfully submitted,

_________________

³⁹Moreover, as Judge Getzendanner has explained, even if the defendant were to

establish a 'general search. of the type that Section 2518 is intended to prevent, there

is little authority for the proposition that general suppression of wiretap evidence is an

appropriate remedy. Id. at 1040-41 (citing numerous cases); see also Ozar,

50 F.3d at 1448; Cox, 462 F.2d at 1301-02; Infelise, 1991 WL 255628 at

*14-16; Gambale, 610 F. Supp. at 1520-23, 1533; Dorfman, 542 F. Supp. at 394-95;

United States v. Webster, 473 F. Supp. 586, 597-98 (D. Md. 1979). Cf. Gotti,

535 F. Supp. at 549-50.

102 .

JAMES B. BURNS

United States Attorney

By: s/John J. Scully

JOHN J. SCULLY

Assistant United States Attorney

5th Floor

219 South Dearborn Street

Chicago, Illinois 60604

(312) 886-7655

By: s/John F. Podliska

JOHN F. PODLISKA

Assistant United States Attorney

5th Floor

219 South Dearborn Street

Chicago, Illinois 60604

(312) 886-2815

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