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UNITED STATES v. CORTESE

June 16, 1983

UNITED STATES of America, Plaintiff,
v.
Charles F. CORTESE, James David "Dave" Osticco, Charles F. Cortese, Samuel Lovecchio, Defendants



The opinion of the court was delivered by: CALDWELL

 CALDWELL, District Judge.

 The purpose of this memorandum is to address issues regarding the hearing scheduled for June 27, 1983, on several motions in the above-captioned criminal matters and to make certain rulings regarding the conduct of the hearing. *fn1" Defendant Charles F. Cortese has filed a motion for suppression and other relief and a motion for dismissal of the indictment in both cases brought against him. Defendant James David Osticco's omnibus pretrial motion seeks suppression of electronic surveillance, dismissal of the indictment, and severance of his trial from that of Cortese.

 In the matters docketed at Criminal Number 82-00149-01 and 82-00149-02 codefendants Osticco and Cortese were charged with violations of 18 U.S.C. §§ 371 (conspiracy to obstruct justice) and 1503 (obstruction of justice). Because these statutory provisions were discussed in our recent memorandum addressing defendant Osticco's bill of particulars and discovery motions, see United States v. Osticco, 563 F. Supp. 727 (M.D.Pa.1983), we will not repeat that discussion herein. In the case docketed at Criminal Number 82-00136 Cortese is charged with violating 18 U.S.C. § 1503 and with two counts of giving perjured grand jury testimony in violation of 18 U.S.C. § 1623. For a discussion of the false declarations statute, see our memorandum filed in United States v. Lovecchio, 561 F. Supp. 221 (M.D.Pa.1983).

 The current suppression motions are directed at least in part to the admissibility of recorded conversations between Frank Parlopiano (or Parr), who appears to be the key government informant, and defendants. Another facet of the suppression issue concerns electronic surveillance through wire tapping and interception of oral communications at Medico Industries, Inc.

  Defendant Osticco's motion attacks the wiretap and oral communications interceptions on the several grounds delineated in 18 U.S.C. § 2518(10)(a)(i), (ii) and (iii). *fn2" Because the present memorandum is being issued prior to the date the government's brief is due on this motion, we have not had the benefit of considering both sides of the issue. We do, however, consider introduction of testimony in this matter important to the resolution of the suppression issue, and we, therefore, shall conduct the hearing so as to consider suppression with regard to all intercepted communications, consensual and non-consensual.

 Both defendants have requested a hearing in accordance with United States v. Starks, 515 F.2d 112, 122 (3d Cir.1975), and the government concurs that such a hearing should be held. Defendants have also requested production of Parlopiano at the June 27 hearing so that the issue of his consent to participate in the taping of his conversations with defendants may be explored. Interception and disclosure of wire or oral communications are prohibited under 18 U.S.C. § 2511 subject to certain exceptions delineated in the statute. The following provisions of 18 U.S.C. § 2511(2) appear relevant in the present case:

 
(c) It shall not be unlawful under this chapter for a person acting under color of law to intercept a wire or oral communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception.
 
(d) It shall not be unlawful under this chapter for a person not acting under color of law to intercept a wire or oral communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State or for the purpose of committing any other injurious act.

 Defendants' position is that either Parr was not acting under color of law or, alternatively, that any consent he gave was obtained through intimidation and/or coercion by the government. The government's brief insists that circumstantial evidence may establish consent. We have reviewed the cases relied upon and conclude that although cases exist in which direct evidence from an informant has not been produced, the better course is to have the informant available. In fact, the government has recently indicated that it will produce Parlopiano at the hearing. Accordingly, we are directing that his appearance be for the limited purpose of testifying on the consent issue. It is to be expressly understood that questions addressed to Jencks Act (18 U.S.C. § 3500) materials or any other improper matters shall not be entertained and objections thereto shall be sustained.

 Another procedural matter that must be clarified prior to the hearing is whether the hearing or any part thereof should be closed to the public. Defendant Cortese has requested a closed hearing and has relied upon the case of Gannett v. DePasquale, 443 U.S. 368, 99 S. Ct. 2898, 61 L. Ed. 2d 608 (1979). In Gannett the majority opinion made the following observation about pretrial suppression hearings:

 
Publicity concerning pretrial suppression hearings . . . poses special risks of unfairness. The whole purpose of such hearings is to screen out unreliable or illegally obtained evidence and insure that this evidence does not become known to the jury. Cf. Jackson v. Denno, 378 U.S. 368, 12 L. Ed. 2d 908, 84 S. Ct. 1774, 28 Ohio Ops 2d 177, 1 ALR3d 1205. Publicity concerning the proceedings at a pretrial hearing, however, could influence public opinion against a defendant and inform potential jurors of inculpatory information wholly inadmissible at the actual trial.
 
The danger of publicity concerning pretrial suppression hearings is particularly acute, because it may be difficult to measure with any degree of certainty the effects of such publicity on the fairness of the trial. After the commencement of the trial itself, inadmissible prejudicial information about a defendant can be kept from a jury by a variety of means. [footnote omitted] When such information is publicized during a pretrial proceeding, however, it may never be altogether kept from potential jurors. Closure of pretrial proceedings is often one of the most effective methods that a trial judge can employ to attempt to insure that the fairness of a trial will not be jeopardized by the ...

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