United States v. Casso

843 F. Supp. 829, 1994 WL 45469
CourtDistrict Court, E.D. New York
DecidedFebruary 8, 1994
DocketNo. CR 90-446(s-4)
StatusPublished
Cited by2 cases

This text of 843 F. Supp. 829 (United States v. Casso) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Casso, 843 F. Supp. 829, 1994 WL 45469 (E.D.N.Y. 1994).

Opinion

MEMORANDUM AND ORDER

NICKERSON, District Judge.

Defendants, alleged members or associates of the so-called Luchese Organized Crime Family, have been indicted in seventy-two counts for various violations of the United States Criminal Code, including racketeering, 18 U.S.C. § 1962(c), racketeering conspiracy, 18 U.S.C. § 1962(d), murder, 18 U.S.C. § 1952B(a)(l), conspiracy to murder, 18 U.S.C. § 1959(a)(5), attempted murder, 18 U.S.C. § 1959(a)(5), labor payoffs, 29 U.S.C. § 186(b)(1), labor payoff conspiracy, 18 U.S.C. § 371, extortion conspiracy, 18 U.S.C. § 1951, and conspiracy to defraud the United States, 18 U.S.C. § .371.

The court has before it motions by defendant Anthony Casso, allegedly the Under-boss of the Luchese Family, and by defendants Salvatore Avellino and Frank Lastorino, both allegedly Captains in the Luchese Family.

Casso, Lastorino, and Avellino have moved pursuant to the Fourth Amendment to the United States Constitution, 18 U.S.C. § 2510 et seq., and Federal Rule of Criminal Procedure 12(b)(3), for an order suppressing their monitored conversations obtained from electronic surveillance of three cellular telephones. Casso has also moved to suppress the fruits of searches of a residence in New Jersey and of two safe deposit boxes. Lastorino and Avellino have moved to suppress the fruits of searches of their residences. Avellino has moved for a bill of particulars.

The Lastorino Wiretap

Casso and Lastorino say that the warrant to wiretap two Brooklyn cellular telephones used by Lastorino was obtained without probable cause.

The affidavit in support of the application to wiretap, sworn to December 7, 1992, says that there is probable cause to believe that Lastorino and his co-conspirator are harboring a fugitive, George Zappola, in violation of New York Penal Law §§ 205.65 and 205.60. It cites multiple sources for probable cause to believe that Lastorino was using the two phones in question, was in regular contact with Zappola, and was hindering apprehension of Zappola. These sources include information from two reliable confidential informants, physical surveillances, pen registers, and telephone records. The affidavit also explains the relationship between Casso, Lastorino, Zappola and other members and associates of the Luchese Family.

Defendants argue that the affidavit was insufficient because, as added confirmation of Zappola’s criminal activities, it refers to what defendants say is unbelievable 1991 testimony of one Dominick Costa, a former member of the Luchese Family.

According to the government, Costa was a government witness in a prosecution of members of the so-called Bypass Gang, a sophisticated burglary ring. Zappola was a codefendant but not tried because he had absconded. Costa testified that Zappola participated in some of the burglaries and also that there had been an unsuccessful attempt on Costa’s own life. He identified two of the then defendants, Michael Bloome and Salvatore Fusco, as engaged in the attempt. Both were convicted.

In September 1993 the United States Attorney asked the court to vacate the convictions of Bloome and Fusco. The government had by then received an admission from one Carmine Sessa that he had shot Costa. After further investigation the United States Attorney concluded that during a suppression hearing a civilian witness had falsely denied she had been shown photographs shortly before viewing an array containing Fusco’s photograph. During the same hearing a law enforcement official (apparently a local official), who had shown her the photographs before the viewing, misled the court concerning the circumstances of the photographic identification.

Contrary to the implication of defendants, the government did not tell the court that Costa had perjured himself.

[832]*832There was ample evidence to justify issuance of the warrant even absent any reference to Costa’s testimony, which provided mere general information about Zappola’s criminal background. Moreover, there is no showing, indeed no suggestion, that the government had information that Costa had testified untruthfully and withheld that information in applying for the wiretap. Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). This court concludes that the affidavit was sufficient to show probable cause. Illinois v. Gates, 462 U.S. 213, 231, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527 (1983); United States v. Gotti, 794 F.2d 773, 777 (2d Cir.1986); United States v. Gallo, 863 F.2d 185, 191 (2d Cir.1988), cert. denied, 489 U.S. 1083, 109 S.Ct. 1539, 103 L.Ed.2d 843 (1989).

Defendants also urge that the recordings should be suppressed because not sealed within the requisite statutory period.

Under 18 U.S.C. § 2518(8)(a) recordings must be sealed “[ijmmediately upon the expiration of the period of the order.” Defendants say that the interceptions ceased on January 6, 1993, that the tapes were not sealed until January 8, 1993, and that thus the government did not seal “immediately” and had provided no explanation for the delay.

The sealing was timely under the ruling in United States v. Massino, 784 F.2d 153, 158 (2d Cir.1986). There the court said, in pertinent part: “In future cases, we direct the following procedure. Tapes should generally be sealed within two days of the expiration of the wiretap order. If the government does not meet this schedule but completes the sealing within five days of the expiration of the order, it shall file in camera with the court an explanation, with supporting affidavits, of the reasons for the delay.” See also United States v. Ojeda Rios, 875 F.2d 17, 20 (2d Cir.1989); United States v. Pitera, 5 F.3d 624, 627 (2d Cir.1993).

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Cite This Page — Counsel Stack

Bluebook (online)
843 F. Supp. 829, 1994 WL 45469, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-casso-nyed-1994.