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UNITED STATES v. ACAVINO

February 18, 1979

UNITED STATES of America
v.
Anthony ACAVINO et al.



The opinion of the court was delivered by: POLLAK

Defendant Vincent Gangemi, Jr., has submitted three motions in which the other defendants in this criminal case have joined: (1) a motion to suppress tape recordings; (2) a motion to suppress all evidence obtained as a result of a search of the premises at 1717 S. 11th Street, Philadelphia, conducted by agents of the Drug Enforcement Administration on July 17, 1978; and (3) a motion for a severance and separate trial. An evidentiary hearing was held. For the reasons set forth below, the motions are denied.

I.

 The motion to suppress tape recordings is grounded on the decision in United States v. Starks, 515 F.2d 112, 121 n. 11 (3d Cir. 1975). The Court of Appeals there adopted the rule of United States v. McKeever, 169 F. Supp. 426, 430 (S.D.N.Y.1958), requiring the Government to establish seven facts before a sound recording can be admitted into evidence:

 
(1) That the recording device was capable of taking the conversation now offered in evidence.
 
(2) That the operator of the device was competent to operate the device.
 
(3) That the recording is authentic and correct.
 
(4) That changes, additions or deletions have not been made in the recording.
 
(5) That the recording had been preserved in a manner that is shown to the court.
 
(6) That the speakers are identified.
 
(7) That the conversation elicited was made voluntarily and in good faith, without any kind of inducement.

 Defendants do not dispute that the Government has met its burden on the first six elements of the Starks test: the recording devices were adequate to their tasks; the operators were competent; the tapes were authentic and unaltered; the chain of custody was unbroken; and the speakers were identified. But, defendants insist that Marrazzo's cooperation in the making of the tapes was obtained by Government assurances to Marrazzo of immunity from parole revocation and prosecution; and it follows, so defendants argue, that none of "the conversation(s) elicited was made voluntarily and in good faith, without any kind of inducement," within the meaning of the seventh element of Starks. *fn1"

 Marrazzo's decision to cooperate with the Government in conducting and recording conversations with certain of the defendants followed an initial approach to Marrazzo by Agent Kean, who solicited Marrazzo's assistance. The context of Marrazzo's decision to cooperate emerges from Marrazzo's testimony:

 
Q. You got involved in some difficulty with the law at that ...

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