United States v. Gigliotti

145 F. Supp. 3d 203, 2015 WL 6830675
CourtDistrict Court, E.D. New York
DecidedNovember 6, 2015
DocketNo. 15 CR 204(RJD)
StatusPublished
Cited by1 cases

This text of 145 F. Supp. 3d 203 (United States v. Gigliotti) 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. Gigliotti, 145 F. Supp. 3d 203, 2015 WL 6830675 (E.D.N.Y. 2015).

Opinion

MEMORANDUM & ORDER

DEARIE, District Judge.

Defendants Gregorio Gigliotti, his wife Eleonora Gigliotti, and their adult son Angelo Gigliotti are charged with, inter alia, conspiracy to import and .importation of cocaine, in violation of 21 U.S.C. §§ 952(a), 960(a)(1), 960(b)(l)(B)(ii), and 963. Indictment, ECF No. 45; Superseding Indictment, ECF No. -51, The cocaine was allegedly stashed inside shipments of produce sent from Costa Rica to [205]*205an import-export company owned by Gregorio. Memorandum of Law in Support of Pretrial Motions [hereinafter Defs.’Mem.], ECF No. 76 at 8.

Defendants submit joint pretrial motions, seeking, inter alia, an order from the Court: (1) suppressing the evidence seized from Cucino Amodo Mio,- a restaurant owned by Gregorio and Eleonora, as the fruit of a pretextual and warrantless search; and (2) suppressing evidence obtained from a wiretap on the landline in Cucino Amodo Mio, because the wiretap was not supported by probable cause. For the, reasons discussed below, the Court denies defendants’ suppression motions.

BACKGROUND

1. Wiretap of Cucino Amodo Mio’s Landline

On June 30, 2014, the Honorable Arthur D. Spatt, United States District Judge for the Eastern District of New York, granted the government’s application for authorization to intercept conversations on the land-line in Cucino Amodo Mio. Defs. Mem. at Ex. 3 (affidavit in support of wiretap). According" to the affidavit submitted in support ‘ of the wiretap application, the sources of probable cause for the wiretap included, inter alia, the following:1

Beginning in or about 2007, the Italian Justice Ministry, together with Italian law enforcement authorities, commenced an investigation into sources of drug trafficking into Italy, including by individuals based in New York. M at ¶19. Ultimately, hundreds of people weré arrested, both in Italy and the United States. Id. Among those prosecuted in the Southern District of New "York were an Italian national living in Queens, Giulio Sehirippa, and an American co-conspirator, Christopher Cas-tellano. Id. Castellano proffered with the government, advising that he had personally observed his and Schirippa’s cocaine supplier meet with Gregorio and, later learned that Gregorio. had purchased $50,000 in cocaine. Id., at ¶ 21. Castellano was shot and killed in 2009, while free on bail pending disposition of his case. Id. at ¶ 22.

Castellano and Schirippa’s cocaine supplier (“CI-1’’) later pled guilty to a nar'eot-ics-trafficking felony charge and cooperated with the government.2 Id. at ¶23. During this cooperation, CI-1 informed the government that he/she had sold cocaine to Gregorio on numerous' occasions, which Eleonora would then take to Italy for distribution. Id. at ¶ 24-25. CI-1 believed that Gregorio was purchasing this cocaine through funding obtained from Anthony Federicci — a member of the Ge-novese organized crime family La Cosa Nostra — because he/she had observed Gregorio and others bringing large sums of cash to and from a social club adjacent to Cucino Amodo Mio owned by Federicci. Id. at ¶¶ 12, 25.

A second confidential informant (“CI-2”), also criminally associated with Schirip-pa, advised the government that Sehirippa owed Gregorio a large sum of money and that the informant had once seen Sehirippa make a payment of $30,000 in cash, to Gregorio. Id. at ¶¶ 26, 28. A third confidential informant (“CI-3”) — an individual with prior narcotics criminal history cooperating in hopes of obtaining consideration on pending criminal charges — said that Gregorio had complained in the informant’s presence that Sehirippa and Castel-[206]*206lano owed him a lot of money for a shipment of cocaine to Italy that they claimed was of poor-quality and un-sellable. Id. at ¶ 29.

In November of 2011, agents conducted visual surveillance of Cucino Amodo Mio and the adjacent social club. Id. at ¶ 30. On November 9, 2011, the agents observed Gregorio meeting with an Hispanic male, John Doe 1 (later identified in a collateral investigation as a cocaine supplier), inside a nearby restaurant owned by Federicci. Id. On November 10 and the morning of November 11, agents observed Gregorio with John Doe 1, as well as two other men, John Does 2 and 3, entering and exiting Cucino Amodo Mio and the adjacent social club. Id. at ¶¶ 31-32. On the evening of November 11, 2011, agents observed John Does 2 and 3 drive up to the social club. Id. at ¶ 32. When the agents later stopped the vehicle for "a speeding violation, they found $500,000 stashed inside a hidden compartment. Id. Around this same time, a fourth confidential informant (“CI-4”)— an individual of undescribed background— advised the government that Gregorio had approximately 14 kilograms of cocaine hidden in a safe at Cucino Amodo Mio, which at that time would have been worth approximately $500,000. Id. at ¶ 33.

In February of 2014, Gregorio stated in the presence of CI-3 that he had recently travelled to Italy in search of buyers for 10 kilograms of cocaine and had left 3 kilograms in Italy with his “cousin,” to search for better offers. Id. at ¶ 35. A few months later, an Italian investigation shared its intercept of a call betweén the Italian phone number of co-defendant Franco Fazio, Gregorio’s cousin, and the Cucino Amodo Mio landline. Id. at ¶37. On the call, Gregorio asks Fazio if “all the oil [had] been given to [his] buddy.” Id. When Fazio replies yes, Gregorio responds “[o]kay, thirty-one, all right.” Id. The agents believed that “oil” was code for cocaine and “thirty-one” was the price per kilogram of cocaine, in thousands. Id. at ¶ 38.

2. Search of Cucino Amodo Mio

On March 9, 2015, the Honorable Cheryl L. Poliak, United States Magistrate Judge for the Eastern District' of New York, granted the government’s application to search the premises of Cucino Amodo Mio for records relating to the conspiracy to import cocaine and computers or storage media that may contain such records. Defs. Mem. at Ex. 1 (affidavit in support of search warrant) at Attachment A. The sources of probable cause for this search warrant included numerous conversations, recorded on the wiretap of Cucino Amodo Mio’s landline, implicating Gregorio, Eleonora, and Angelo in a conspiracy to import cocaine from' Costa' Rica through shipments of produce to Fresh Farm Produce Export Corp. (“Fresh Farm”), an import-export company owned by Gregorio. Id. at ¶¶ 5, 7, 9-13,17-19, 21-23’ 26-29. On a few of these phone calls, Gregorio discusses using the computer in Cucino Amodo Mio’s office to send emails to coconspira-tors and look up shipping containers and implicates Cucino Amodo Mio as being involved in the operations, saying to a co-conspirator that he would contact him through his Cucino Amodo Mio email, not Fresh Farm, because “Cucino Amodo Mio is me

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Bluebook (online)
145 F. Supp. 3d 203, 2015 WL 6830675, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-gigliotti-nyed-2015.