The opinion of the court was delivered by: CALDWELL
I. Introduction and Background
Before the court for disposition are four motions filed in the above-captioned criminal matters. Defendant Osticco has filed a "Substantive Omnibus Pretrial Motion" requesting (1) suppression of electronic surveillance, (2) dismissal of the indictment for indefiniteness and failure to state an offense and for grand jury abuse, and (3) severance of his trial from that of co-defendant Cortese in the matter docketed at Criminal Number 82-00149. Defendant Cortese has filed a motion for suppression and other relief and for dismissal of the indictment in both cases brought against him. Defendant Lovecchio has filed a "Motion to Intervene, Join In And/Or Adopt Defendant Osticco's Motion to Suppress Intercepted Wire and Oral Communications and Derivative Evidence."
On June 27, 1983, a hearing in compliance with our memorandum of June 16, 1983,
was held. At that hearing testimony and argument were presented on the outstanding motions, and they are now ripe for disposition. For the reasons discussed hereinafter, the parts of defendant Osticco's motion requesting suppression and dismissal of the indictment are denied and the part requesting severance is dismissed as moot. The suppression motions of defendants Cortese and Lovecchio are also denied. Defendant Cortese's motion to dismiss the indictments is granted with respect to the case docketed at Criminal No. 82-00149-02 and with respect to Count One only of the case docketed at Criminal No. 82-00136. With respect to the second and third counts, the motion is denied.
The suppression motions focus upon the two types of surveillance which led to the indictments in these criminal matters. With regard to Osticco and Cortese, testimony at the recent hearing, as well as documentary evidence, has established that Frank Parlopiano (or Parr) recorded or participated in the interception of conversations he had with each defendant commencing on or about May 13, 1980, and terminating on or about September 23, 1982. These interceptions were made with a microwave recorder carried by Parlopiano and a car recorder installed in his vehicle and were attempted unsuccessfully with a body recorder worn by Parlopiano on one occasion. The other interceptions were conducted at Medico Industries in Plains Township, Pennsylvania, and involved Federal Bureau of Investigation (FBI) installation of devices to intercept telephone and other oral communications. These interceptions began in late December of 1979 pursuant to authorization (18 U.S.C. § 2516) by Chief Judge of the Middle District of Pennsylvania, Hon. William J. Nealon. Judge Nealon also granted one extension of this Title III surveillance.
The major focus of our proceeding on June 27, 1983, was the interceptions involving Frank Parlopiano. Our June 16 memorandum had informed the parties that we would be concerned with determining whether the criteria set forth in United States v. Starks, 515 F.2d 112 (3d Cir. 1975) were satisfied.
It had been suggested to us prior to the hearing that the real issue to be developed was that of Parlopiano's consent. Defendants have never seriously contested the other Starks criteria, and at the hearing stipulations were entered that affidavits would suffice to establish the capability of the recording devices, the competency of the agents operating them, and the chain of custody of the recordings. Parlopiano testified that he had listened to the tapes introduced as exhibits by the government and that they accurately reflected the conversations in which he participated. Most of these conversations were between Parlopiano and either Osticco or Cortese.
The evidence supporting the voluntariness of Parlopiano's consent was substantial. Both the government and defendant Osticco have drawn our attention to the recent case of United States v. Kelly, 708 F.2d 121 (3d Cir. 1983) in which the issue of voluntary consent was fully considered. As the Kelly case shows, a "totality of the circumstances" test is appropriate in deciding whether official coercion exists which precludes a finding of voluntariness.
At the June 27 hearing Parlopiano testified that he was called in by FBI Special Agent Francis Mulholland in August of 1979 and that, although he initially refused to do any taping because he feared for his safety, in April of 1980 he changed his mind.
Asked at the hearing what his motivation was to cooperate he said he just wanted to help. Throughout his testimony Parlopiano stated that he received no threats from the FBI but rather was told that he could cease cooperating at any time. Agent Mulholland's testimony essentially corroborated that of Parlopiano.
As Appendix G to its response to Osticco's motion, the government included fifteen authorizations signed by Parlopiano. Each of the authorizations states, "I have given this written permission to the above-named Special Agents voluntarily and without threats or promises of any kind." Appendix H was the "Memorandum of Agreement" executed between Parlopiano and the government. Embodied in that agreement was at least an implication that Parlopiano might receive payment for his assistance in the investigation.
In paragraph 18 of the agreement the government "assume[d] the travel expenses of transporting Frank Parlopiano to a safe destination." According to Parlopiano, the government paid him $16,000 as reimbursement for his expenses while he was cooperating and $10,000 after he was relocated. Parlopiano indicated that the latter sum allowed him to purchase household items and a car so that he could set up residence and find a job at his new destination. Parlopiano's wife received $4,500 to help with car and mortgage payments.
B. Title III Interceptions
The other type of electronic surveillance, the Title III interceptions conducted in these matters, has been subjected to a threefold attack by defendant Osticco. First, defendant alleges that the authorization orders were improperly executed because the FBI failed to minimize the interception of nonpertinent conversations. Second, Osticco asserts the existence of alleged insufficiencies in Special Agent Dennis Sackreiter's affidavit of December 21, 1979, in support of the initial authorization by Judge Nealon to intercept wire and oral communications at Medico Industries, Inc. Last, Sackreiter's affidavit of January 25, 1980, is attacked as insufficient to support an extension of the electronic surveillance.
1. The Minimization Issue
Defendant Osticco has raised the issue that all of the Title III electronic surveillance must be suppressed because the law enforcement agents involved did not minimize the interception of non-pertinent conversations, as required under 18 U.S.C. § 2518(5).
As Osticco recognizes, however, the applicable standard is an objective evaluation of whether the conduct of the government official was proper under the circumstances. In Scott v. United States, 436 U.S. 128, 98 S. Ct. 1717, 56 L. Ed. 2d 168 (1978), a case in which no minimization was attempted, the court discussed the proper standard and concluded,
The statute does not forbid the interception of all nonrelevant conversations, but rather instructs the agents to conduct the surveillance in such a manner as to "minimize" the interception of such conversations. Whether the agents have in fact conducted the wiretap in such a manner will depend on the facts and circumstances of each case.
Id. at 140, 56 L. Ed. 2d at 179. The court continued by recognizing that the question of the motive or intent of the agent need play no major role in a minimization inquiry and listed several relevant factors to be utilized. Among them were percentage of nonpertinent calls. Yet the Court stated,
Such percentages may provide assistance, but there are surely cases, such as the one at bar, where the percentage of nonpertinent calls is relatively high and yet their interception was still reasonable. The reasons for this may be many. Many of the nonpertinent calls may have been very short. Others may have been one-time only calls. Still other calls may have been ambiguous in nature or apparently involved guarded or coded language. In all these circumstances agents can hardly be expected to know that the calls are not pertinent prior to their termination.
Turning to the matter before us, we note initially the inclusion by the government in Appendix C of its response to Osticco's motion of several memoranda regarding minimization. Special Agents of the FBI who received training regarding minimization of the electronic surveillance were required to initial these memoranda. Moreover, the monitoring agents were required to read the application, affidavit, and authorization order for the interceptions, the latter of which, see n. 7 infra, contained a minimization directive. Additionally, Judge Nealon actively supervised the course of the interceptions by requiring reports at five day intervals, which reports were included in Appendix D of the government's response.
Of further import to the minimization issue is Appendix E of the government's response, which includes the affidavit of Special Agent Robert Grispino. Grispino reviewed the logs detailing the telephone interceptions and found that of 11,711 interceptions, 10,836 were minimized for a minimization quota of 93 per cent. The government has indicated that 585 microphone interceptions were made and that minimization was also effected with regard to those communications.
Citing numerous authorities including Scott, the court in the recent case of United States v. Dorfman, 542 F. Supp. 345 (N.D.Ill. 1982) concluded,
The term minimization is a shorthand expression which represents the government's obligation to reduce to the extent possible interception of conversations which are not the subject of the court order. Minimization is to be judged on a case by case analysis of the reasonableness of the government's conduct in terminating non-pertinent conversations. [citations and footnote omitted]. The reasonableness approach reconciles the frequently difficult task of determining the character of an intercepted conversation with the statutory policy of minimizing any intrusion on personal privacy . . . . Absent an "unreasonable" intrusion, neither the statute nor the fourth amendment are violated. [citations omitted].
Id. at 390. Moreover, as the court pointed out,
It is not enough for the defendants to identify particular calls which they contend should not have been intercepted; they must establish a pattern of interception of innocent conversations which developed over the period of the wiretap.
In the present case, defendant Osticco has stated that he seeks to put the government to its burden because after looking at logs and listening to intercepted conversations, he feels minimization efforts were "haphazard at best." Our review of applicable authorities and the minimization materials submitted by the government compels a contrary conclusion. The government minimized interceptions in the present investigation by ceasing to monitor non-pertinent conversations before they concluded. Because of the rather extensive documentation the government has submitted in the face of defendant's generalized attack, we find the motion may properly be disposed of without a hearing. Accordingly, we conclude ...