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June 27, 1994


The opinion of the court was delivered by: DONALD J. LEE


 Before the Court is the Government's Motion for Reconsideration of Order Suppressing Statement, (Document No 878, in part).

 The Government has asked the Court to reconsider its Order suppressing Defendant John F. "Duffy" Conley's October 30, 1989 statement to Special Agent John Donnelly. Upon reconsideration, the Court will alter its findings of fact, but the Order will be reaffirmed.

 In prior proceedings, the Court suppressed evidence of statements made by Duffy Conley on October 30, 1989, having concluded that, under the applicable law, the statements were unconstitutionally coerced statements in violation of the Fifth Amendment. United States v. Conley, 1994 U.S. Dist. LEXIS 10663, Crim. No. 91-178, slip op. (W.D. Pa. January 7, 1994) (Document No. 800). The Court will not reiterate its findings or legal analysis, except to the extent absolutely necessary to dispose of the Government's contentions.

 The Government raises three grounds for reconsideration. First, the Government contends that Special Agent John Donnelly's ("S.A. Donnelly") off-the-record promise was limited to the Windgap "conversation." Second, the Government contends that agreeing to speak off-the-record is not a promise of use immunity. Finally, the Government contends that "Duffy Conley's testimony was given too much credibility by this Court. The defendant's version of what occurred at Windgap is at odds with the version offered by the government through FBI SA Donnelly." Government's Motion for Reconsideration of Order Suppressing Statement and Brief in Response to Defendant's Motion to Suppress "Tainted" Evidence, at 19. The Court will address the Government's contentions in reverse order.


 The Government does not contend that the Court's findings are not supported by the evidence. Rather, it objects that the Court believed Duffy Conley rather than S.A. Donnelly on points where their testimony conflicted, S.A. Donnelly's testimony did not cover an area, or S.A. Donnelly's testimony stated an inability to clearly recall.

 The Court, as finder of fact, is free to accept or reject any part or all of any witness's testimony. Government witnesses are not per se credible, or even presumed to be credible. Although many of the Court's findings were based upon the testimony of S.A. Donnelly, the Court did in fact implicitly make credibility determinations adverse to S.A. Donnelly on critical points. As the Government has pressed the point, the Court will express its reasons -- though not necessarily for every credibility determination.

 First, the Court found to be believable the testimony of Duffy Conley in support of this motion. The Court has observed the demeanor of Duffy Conley during his testimony on this occasion and numerous other occasions. Contrary to the Government's contentions, the Court is not "unjustified" in believing Duffy Conley on critical points -- whether or not it views his testimony regarding other matters as "less than candid."

 Second, the Court found the testimony of S.A. Donnelly "less than candid." In its original opinion, the Court rejected S.A. Donnelly's attempt to convey the impression that the substance of Miranda warnings were given to Duffy Conley at the Main Hotel. Conley, slip op. at 5-7, PP 31-35 & n.3. The Government contends that S.A. Donnelly's testimony "is supported by" the FD-302 prepared by S.A. Donnelly, which "represents the best evidence of what was said that day." Government's Motion for Reconsideration of Order Suppressing Statement and Brief in Response to Defendant's Motion to Suppress "Tainted" Evidence, at 19 n.7. The FD-302 was certainly better evidence of what was said that day than S.A. Donnelly's testimony on direct examination. Defense counsel's cross-examination of S.A. Agent Donnelly, which was based in part on the FD-302 and in part from other sources, demonstrated the wisdom of the Framers in writing the Sixth Amendment as they did.

 On cross-examination, S.A. Donnelly admitted that his purpose for the Windgap encounter, his first interview of Conley, was to obtain information about Ninny Lagatutta, Sonny Ciancutti and the Arnold Coin Company. When asked if he mentioned any of these persons at the first meeting, he "could not recall" and "didn't know that he did." Duffy Conley directly testified that S.A. Donnelly did ask about such persons at the Windgap encounter. Moreover, Duffy Conley directly testified to having discussed those persons at the Main Hotel. S.A. Donnelly "did not recall mentioning any names" at the Main Hotel, despite the FD-302's including some of the subject matters which formed the context of the discussions related by Duffy Conley, but not the names of the persons. In determining to credit Duffy Conley's testimony notwithstanding Agent Donnelly's insistence that he would not have mentioned specific names without a formal cooperation agreement, the Court had to wonder how Duffy Conley was able to discern so accurately S.A. Donnelly's actual subjective interests, which S.A. Donnelly did not recall ever expressing. See also (N.T. April 4, 1994 at 70-77).

 The Government stresses that Duffy Conley was "uncooperative" at the first meeting. The Court believes that S.A. Donnelly was seeking a more formal cooperation agreement, but he never mentioned such an agreement to Conley. Conley, slip op. at 2 P 8, 15 (Document No. 800). The lack of a formal cooperation agreement may mean "uncooperative" in some special government sense, but the Court's findings on the demeanor of the actors during the encounters in question -- based in large measure on S.A. Donnelly's testimony -- reflect friendly, non-adversarial exchanges. See id. at 3 PP 12-16.

 Based exclusively on S.A. Donnelly's testimony, the Court made the following findings:


2. Although there was an ongoing, independent federal investigation of John F. "Duffy" Conley ("Conley"), S.A. Donnelly was not aware of it [in mid-October, 1989]. Conley was not a target of S.A. Donnelly's investigation.


* * *


19. [At the Main Hotel] S.A. Donnelly was still conducting his independent investigation, in which Conley was not a target.

 Conley, slip op. at 1-2 P 2, 4 P 19. S.A. Donnelly's testimony on this matter certainly was based upon a "special meaning" so narrow as to be without meaning to anyone other than the witness.

  The pertinent part of S.A. Donnelly's cross-examination at the suppression hearing occurred as follows:


Q [Mr. Wymard] Agent Donnelly, you indicated that you happened to be out at The [sic] Main Hotel doing a surveillance; is that correct?


A [S.A. Donnelly] That's correct.


Q The focus of your involvement in the investigation at this time; is that correct?


A That's correct.


Q All right. and the focus of your investigation was John "Duffy" Conley, isn't that correct?


A That's incorrect.


Q That's incorrect, okay. Would you tell us what the nature of your investigation was.


A I'm not sure I can at this time because it is an ongoing investigation. But it was not -- this was prior to --


Q This is 1989?


A Yes. This was prior to the matter at hand. It just so happened that my investigation overlapped with John "Duffy" Conley's video poker operation, and he was not the target of an investigation at that time.


Q Are you telling in October of 1989 John "Duffy" Conley was not the target of any FBI investigation that you were aware of at that time?


MR. WILSON: Objection, that isn't what the witness has said. And I --


MR. WYMARD: Well --


MR. WILSON: Your Honor, if I might, Agent Pietropola has indicated to me that he is aware that Agent Donnelly was participating in a surveillance directed at a target wholly unrelated to John "Duffy" Conley and not related to this --


THE COURT: He'll not be required to disclose that, but I'll overrule the objection. I think it's proper examination.


Do you understand the question?


THE WITNESS: Could you rephrase the question, please?


THE COURT: Shirley, would you please read back the last question.


(Whereupon, the previous question was read back by the reporter.)


A. He was not the target of my investigation.


Q That was not my question.


A Then I'll continue by "I am aware of." He is not the target of any investigation that I was aware of.


Q Are you telling me that you were not aware of an FBI investigation of John "Duffy" Conley on October the 30th, 1989?


A That's correct.

 (N.T. July 8, 1992, at 13-15). Solely on the basis of the foregoing exchange, the Court made its Finding Nos. 2 & 19. *fn1"

 S.A. Donnelly, Special Agent Chuck Duffy, (S.A. Duffy) and Former Supervising Agent Robert Garrity ("Garrity"), who supervised S.A. Donnelly at all relevant times, testified at the hearings on the taint, if any, arising from Conley's statements at the Main Hotel. (See N.T. April 4, 1994; N.T. April 14, 1994). At these hearings, it became clear to the Court that S.A. Donnelly was fully aware that the FBI was actively gathering evidence with the intention of prosecuting Duffy Conley for his activities with video poker machines. S.A. Donnelly back-pedalled from his unequivocal denial in reliance upon "special meanings" of "target" or "investigation."

 At the taint hearing, S.A. Donnelly testified that he wrote his FD-302 to an existing RICO investigation file (the "RICO file"), which was not specifically a Duffy Conley file. Further, he testified that eventually an Illegal Gambling Business file (the "IGB file") was opened involving Duffy Conley as a target, and the FD-302 was subsequently incorporated into the IGB file. (N.T. April 4, 1994, at 37-38). He testified that the IGB file was opened on November 3, 1994. (N.T. April 4, 1994, at 68).

 At the taint hearing, S.A. Donnelly reiterated that he was not investigating Duffy Conley at the Main Hotel, he had no knowledge of any other FBI investigation of Duffy Conley and no knowledge of any federal investigation of Duffy Conley. (N.T. April 4, 1994, 50). He testified that he was not interested in Duffy Conley and would have no reason to want to follow him or investigate him prior to October 30, 1989. (N.T. April 4, 1994 at 98-99).

 S.A. Donnelly testified that he attended at least two meetings held to adopt an enforcement strategy regarding video poker machines prior to October 30, 1994. *fn2" (N.T. April 4, 1994, at 113-15). One of those meetings occurred in the United States Attorney's Office, then occupied by Acting United States Attorney Charles Sheehy. In addition to S.A. Donnelly and Mr. Sheehy, Garrity, S.A. Duffy, First Assistant U.S. Attorney Craig McKay and Pennsylvania State Troopers Cunningham and Aaronson were present. (N.T. April 4, 1994, at 116). The meeting was called to introduce the members of the law enforcement groups to each other and to the Acting United States Attorney's plan to implement a recent federal court decision, United States v. 294 Various Gambling Devices, 718 F. Supp. 1236 (W.D. Pa. 1989) (Weber, J.), regarding the legality of: video poker machines. (N.T. April 4, 1994, at 116-17). Targets of the joint task force were identified by name. (N.T. April 4, 1994, at 117). Regarding the targets, S.A. Donnelly testified as follows:


Q [MR. WYMARD] You don't know whether any specific targets were mentioned, but potential targets were mentioned? Is that what you are saying?




Q Can you tell us who the potential targets were that would have been mentioned?


A. Three Rivers Coin, Haubelt Vending, Arnold Coin; those three that come to mind.


Q Three Rivers Coin?


A Yes.


Q Haubelt Vending?


A Yes.


Q And what else?


A Arnold Coin.


Q These were three potential targets. Is that correct?


A Yes.


Q All right. Was the name "Duffy" Conley mentioned?


A I would say, I guess, yes, sir.


Q It was?


A Yes.


* * *


Q Was his name mentioned? Was "Duffy" Conley mentioned at this meeting?


A Yes.


Q. It was?


A. Yes.


Q. As a potential target?


A. Three Rivers Coin.


Q That is not what I asked you. I asked you if the specific name, "Duffy" Conley, was mentioned as a potential target.


A You have added something to that sentence from the first time. You asked, was he named as a target? He was named in that he was the operator of Three Rivers Coin. Three Rivers Coin, a company, was targeted. And not individuals. A company. And in the historical background of who makes up the company, John "Duffy" Conley's -- in all probability -- his name was mentioned.


Q As the owner and operator of Three Rivers Coin?


A Yes. With Bill Curtin and others.


Q Give me your best guess of when this meeting occurred.


A I couldn't even begin to give it.


Q It was late October? Is that what you are saying --


A No.


Q -- in your report?


A. No. I believe this one was early on.

 (N.T. April 4, 1994, at 117-19). Further, S.A. Donnelly testified that he specifically remembered "the strategy meeting in the office of Chuck Sheehy, when they said 'Go get him.'" (N.T. April 4, 1994, at 125). Nevertheless, S.A. Donnelly insists, "As of the 3rd of November, John 'Duffy' Conley became a target of an illegal gambling business." (N.T. April 4, 1994, at 127).

 In contrast, S. A. Duffy testified that the decision to include Duffy Conley as a target of the joint gambling investigation had been made months before November 3, 1989, as early as September 1989. (N.T. April 4, 1989, at 174, 187). There was a gathering of intelligence going on before the formal opening of a file, which he testified was "just a technical matter of putting something in writing in order to get it started." (N.T. April 4, 1994, at 174). It came out very early in the meetings of the joint task force that Duffy Conley was probably the largest video poker machine operator in Western Pennsylvania. (N.T. April 4, 1994 at 176). By mid-October, S.A. Duffy definitely considered Duffy Conley a target. (N.T. April 4, 1994 at 200-02).

 Former Supervising Agent Garrity testified that as a result of the meetings following Judge Weber's decision, the FBI had reason to believe that Duffy Conley and Curtin were under the direction of Ninny Lagatutta, and Duffy Conley was known to have had a significant number of video poker machines in operation. (N.T. April 14, 1994, at 11-12). He testified that on October 30th S.A. Donnelly definitely was a key part of the federal investigative team looking into video poker machine gambling. The following exchange then occurred:


Q Okay. So then when he [Donnelly] would -- let me ask you this. He has told us that on October 30, 1989 when he took this statement from Duffy Conley at the Main Hotel, that to his knowledge, as having been a special agent working for you, okay, and the FBI in this video poker area, that John Duffy Conley was not the target of any federal investigation on October 30th, 1989. Would you agree with that?


A He said that?


Q That's what he said.


A I guess it all goes back to what -- you know, maybe his interpretation of what a target was. He certainly was one of the people we talked about, so I considered him part of the -- what I considered at that time to be part of the illegal poker machine business in the Pittsburgh area, Allegheny County, and so, you know, if he didn't consider him a target, I can't answer that.


Q Okay. Well, that's what his testimony was. And he was unaware of any federal investigation that involved John Duffy Conley on October 30th, 1989?


A That's probably hair splitting. I mean, maybe there was no official memorandum opening a file but there was investigation to the extent that we had discussed his activities in this area.

 (N.T. April 14, 1994, at 31) (emphasis added). Garrity was also aware that the FBI was investigating Sonny Ciancutti's involvement in video poker machine gambling, and the investigation was assigned to S.A. Donnelly. (N.T. April 14, 1994, at 32). He was also aware the FBI was investigating Ninny Lagatutta's involvement with video poker machines, but indicated that the FBI had not yet sorted out the relationships involved among the operators. (N.T. April 14, 1994, at 34-36).

 Based upon the foregoing, and the record developed on July 8, 1992, April 4, 1994 and April 14, 1994, the Court substitutes the following findings of fact for Finding No. 2 in Conley, slip op. at 1-2 P 2 (Document No. 800):


2. (a) S.A. Donnelly was fully aware that the FBI was actively gathering evidence with the intention of prosecuting Duffy Conley for his activities with video poker machines, and he was an important member of the video poker gambling task-force at all relevant times.


(b) No memorandum opening a formal, funded investigation pursuant to FBI procedures specifically named Duffy Conley in the caption of the memorandum.


(c) S.A. Donnelly was gathering evidence and information regarding Duffy Conley in connection with the investigation of Sonny Ciancutti and the broader joint task force investigation of video poker machine gambling. The evidence was being gathered because, although he was not yet named in any opening memorandum, Duffy Conley had become a potential defendant in both of the investigations.

  In addition, based upon the foregoing, and the record developed on July 8, 1992, April 4, 1994 and April 14, 1994, the Court substitutes the following findings of fact regarding the encounter at the Main Hotel for Finding No. 19 in Conley, slip op. at 1-2 P 2 (Document No. 800):


19. (a) S.A. Donnelly went to the Main Hotel for the purpose of making contact with Duffy Conley. *fn3"


(b) S.A. Donnelly intended to elicit evidence regarding Duffy Conley's involvement in video poker gambling from Duffy Conley at the Main Hotel.


(c) S.A. Donnelly's presence at the Main Hotel on October 30, 1989 was causally related to statements made by Duffy Conley at Windgap in mid-October in that S.A. Donnelly had uncovered contrary information and sought to asked Duffy Conley about the contradiction. *fn4"

  The Government has pressed the credibility of S.A. Donnelly regarding the events surrounding Duffy Conley's statement at the Main Hotel. In short, the Government's credibility ground for reconsideration is without merit.


  The Government's second ground for reconsideration is that the Court erroneously held that S.A. Donnelly promised Duffy Conley informal use immunity without limitation as to time. The Government misapprehended the Court's Opinion.

  The Court clearly held that "Conley's statements at the Main Hotel on October 30, 1989 were not voluntary." Conley, slip op. at 20, Conclusion of Law No. 1 (Document No. 800). The Court's only reference to 18 U.S.C. ยง 6002 was a passing one in footnote 6. Footnote 6 was addressed to language from United States v. Fraction, 795 F.2d 12, 15 (3d Cir. 1986), which may be read as requiring a promise to be properly authorized before a statement can be suppressed on the basis of the promise. The Court never indicated that anyone other than a prosecutor could grant informal use immunity. The Court only found a similarity between the manner in which society's interest in prosecuting informants should be protected, that is, by regulating the making of promises to informants in the first place, not in failing to somehow give already made promises effect. Footnote 6 concludes, "In short, it is the making of the promise in this case that is relevant to the voluntariness inquiry, rather than the question of whether the promise was, or should be, within the lawful authority of S.A. Donnelly." Conley, slip op. at 18-19 n.6. In contrast, the inquiry in the cases cited regarding informal use immunity, which are cited nowhere else in the Opinion, is focused upon the enforceability of prosecutor's promises, not voluntariness. See, e.g., Santobello v. New York, 404 U.S. 257, 262, 30 L. Ed. 2d 427, 92 S. Ct. 495 (1971).

  The Court's supplemental findings in I.A. above resolves the Government's argument's predicated on S.A. Donnelly's lack of awareness of any federal investigation targeting Duffy Conley. Moreover, the Government's argument regarding S.A. Donnelly's understanding of intending not to use Conley's statements against him are not only "nothing more than speculation," United States v. Walton, 10 F.3d 1024, 1029 (3d Cir. 1993), they are contradicted by the record. See Conley, slip op. at 2 P 7.


  The Government's primary argument is its first argument, which the Court is addressing last. The Government's argument is predicated in part upon succeeding in persuading the Court that it erred in failing to credit S.A. Donnelly's testimony, in part upon Duffy Conley's statements at his November 3, 1989 state-court preliminary hearing, in part upon the baseless contention that the Court applied an outdated legal standard, and in part upon playing semantics and ignoring the totality of the circumstances. The Court rejects the Government's argument.

  The Court did not err in failing to credit the in-court testimony S.A. Donnelly. Moreover, the Government has introduced only hearsay evidence of the statements attributed to Duffy Conley at his state-court preliminary hearing. The Government introduced a November 8, 1989 memorandum to the IGB file (opened on November 3, 1989) in which S.A. Donnelly writes that Duffy Conley acknowledged that S.A. Donnelly gave him sufficient warning at the Main Hotel to "avoid conversation" or "to cease at any time." Had S.A. Donnelly testified regarding such statements, Duffy Conley's statements would not, of course, be hearsay. The Government only introduced the memorandum, and it is crystal-clear that S.A. Donnelly was not subject to cross-examination on the memorandum. *fn5" Recognizing the relevance of the hearsay statements regarding Duffy Conley's statements at his November 3, 1989 state-court preliminary hearing contained in the November 8, 1989 memorandum, which the Court has admitted in evidence, the Court declines to give the hearsay any weight.

  The Court relied upon current law, including United States v. Walton, 10 F.3d 1024 (3d Cir. 1993), in analyzing the voluntariness of Duffy Conley's statements in light of S.A. Donnelly's promise. Under the totality of the circumstances, the Court appropriately found that S.A. Donnelly's statements -- that Conley was not a target of his investigation and that they could speak "off-the-record," (the two having reached the proverbial subjective "meeting-of-the-minds" that this meant Conley's statements would not be used against him) -- maintained their "uniquely influential nature," id. at 1030, and were the cause of Conley's statements at the Main Hotel. *fn6"

  The Court will not redo its totality of the circumstances analysis here. It will indicate that S.A. Donnelly's investigative interest in Conley and knowledge that at all relevant times Conley was a "target" of his "investigation," as those words are generally understood, certainly casts S.A. Donnelly's October 1989 conduct in a more deceptive and manipulative light. Initially, upon reading Walton, the Court saw a potential ground of distinction in that Walton had been identified by law enforcement officers as a suspect, whereas S.A. Donnelly considered Conley merely a potential informant. Upon reconsideration, that distinction has been removed.

  The Government's Motion for Reconsideration of Order Suppressing Statement, (Document No 878, in part), will be denied.

  An appropriate order will be entered.

  Lee, J.


  AND NOW, this 27th day of June, 1994, it is hereby ORDERED that the Government's Motion for Reconsideration of Order Suppressing Statement, (Document No 878, in part), is DENIED.

  Donald J. Lee

  United States District Judge

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