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United States v. Mastronardo

United States District Court, Third Circuit

December 13, 2013

UNITED STATES,
v.
JOSEPH VITO MASTRONARDO, JR. JOHN MASTRONARDO JOSEPH F. MASTRONARDO ERIC WOEHLCKE HARRY MURRAY JOSEPH VITELLI ANNA ROSE VITELLI PATRICK TRONOSKI EDWARD FEIGHAN KENNETH COHEN SCHUYLER TWADDLE MICHAEL LOFTUS JOANNA MASTRONARDO

MEMORANDUM

JAN E. DuBOIS, District Judge.

I. INTRODUCTION

On August 1, 2012, a federal grand jury in the Eastern District of Pennsylvania named defendants in a twenty-three count indictment. The Indictment charges defendants with, inter alia , participating in a racketeering conspiracy in violation of 18 U.S.C. § 1962(d), managing an illegal gambling business in violation of 18 U.S.C. § 1955, and engaging in money laundering in violation of 18 U.S.C. § 1956(a)(1)(B)(i).

Presently before the Court is defendants' Motion to Suppress Wiretap and Physical Evidence. Defendants seek to suppress direct and derivative evidence acquired from wiretaps and GPS surveillance of defendants' vehicles.

The Court conducted a three-day evidentiary hearing on all pending motions - including the instant motion to suppress - from September 30, 2013 through October 2, 2013. Oral argument on all pending motions was held on November 18, 2013. This Memorandum constitutes the Court's findings of fact and conclusions of law with respect to defendants' Motion to Suppress Wiretap and Physical Evidence. For the reasons that follow, defendants' motion is denied.

II. BACKGROUND

Defendants have been indicted for crimes arising from their alleged participation in an illegal gambling business - the Mastronardo Bookmaking Organization ("MBO").[1] The MBO was headquartered in Montgomery County, Pennsylvania with members and associates located across the United States and in Costa Rica. Defendants worked as bookmakers, agents, office employees, and technical-support staff. The MBO used password-protected websites, toll-free phone numbers, and personal meetings to take bets on a variety of sports. Bettors received a line of credit through their accounts, and bettors could pay gambling debts on losing bets using cash, check, or wire transfer. The MBO paid winning bets in cash. At its peak, the MBO had over one thousand bettors and generated millions of dollars of betting activity a year.

A. Early Stages of Investigation and Confidential Sources

Police had investigated some of the defendants in 2006 for illegal bookmaking. During that investigation, police used wiretaps and search warrants to discover, inter alia , (1) the identity of several defendants, (2) the location of an office used to conduct bookmaking activity, (3) the URL of a website used to collect wagers, and (4) the existence of large sums of hidden currency in the residences of some defendants.

John Mastronardo, Joseph Vito Mastronardo, Jr., and Edward Feighan were arrested on June 5, 2006, and all three plead guilty to bookmaking and conspiracy to commit bookmaking. John Mastronardo received a sentence of two to twenty-three months confinement and five years of probation; Joseph Vito Mastronardo, Jr. received a sentence of two years of intermediate punishment, including six months of house arrest, and five years of probation; and Feighan received a sentence of two years of probation. After shutting down the illegal gambling business in 2006, police suspected that the business might resume operations because its website displayed the message "sorry for the inconvenience, we will be back up shortly."

The investigation at issue in this case began in October 2008, when Detective James Vinter of the Montgomery County Detectives Bureau made contact with Confidential Source One ("CS1"). CS1 told Detective Vinter that he had placed bets over the phone with Feighan and that Feighan had resumed bookmaking activity in Montgomery County. CS1 claimed that Feighan paid and collected gambling debts on a weekly basis at the Century House in Hatfield, Pennsylvania. Detective Vinter memorialized the conversation approximately five months after the meeting in a police report dated February 17, 2009.

CS1 met Detective Vinter a second time in May 2009. At that time, CS1 reported that Feighan continued to take bets from individuals in Montgomery County and that Feighan had bragged about a group of bettors from the Lehigh Valley Country Club, whose weekend wagers could escalate above $50, 000. On at least one occasion, CS1 said he overheard Feighan say that he had money to deliver to Joseph Vito Mastronardo, Jr. at the Cedarbrook Country Club. Detective Vinter met CS1 a third time during the second week of August 2009. At that time, CS1 told Detective Vinter that Feighan was using a website at ExclusiveWager.com. CS1 provided police with his user name and password. The May and August 2009 conversations with CS1 were memorialized by Detective Vinter in two police reports dated August 17, 2009.

Police were able to corroborate several pieces of information obtained from CS1. First, the 2006 arrests and guilty pleas of Joseph Vito Mastronardo, Jr. and Feighan corroborated information that they were working together. Second, Detective Vinter remembered that Joseph Vito Mastronardo, Jr. was a member of the Cedarbrook Country Club during the 2006 investigation. Third, police observed Feighan making trips to the Century House on the days reported by CS1. Fourth, CS1 correctly identified a picture of Feighan's girlfriend, whom police had observed during the 2006 investigation. Lastly, police verified that the website, username, and password provided by CS1 were operational. On August 18, 2009, on application of Detective Vinter, the Court of Common Pleas of Montgomery County authorized disclosure of the toll records on Feighan's cellular phone and installation of a GPS tracker on Feighan's vehicle.

On August 24, 2009, Detective Vinter learned that police in Upper Moreland Township, Pennsylvania had taken photographs of a laminated sheet containing names and phone numbers that they had found in Joseph Vito Mastronardo, Jr.'s vehicle. Upper Moreland police recovered the vehicle after it had been stolen, and they photographed the laminated sheet during an investigation of the car thieves.[2] On August 25, 2009, Detective Vinter obtained and examined the photographs and found two names that he believed to be associated with defendants' illegal gambling business: (1) "Pat TT", who Detective Vinter believed to be defendant Patrick Tronoski; and (2) "Ed Fagan", who Detective Vinter believed to be defendant Edward Feighan. The "Pat TT" phone number matched a phone number associated with Tronoski during the 2006 investigation.

On September 9, 2009, Detective Vinter met with CS1 a fourth time. At that time, CS1 reported that, on at least one occasion, he had seen Feighan use an alternate cell phone to speak with Joseph Vito Mastronardo, Jr. Detective Vinter believed that the phone number listed for "Ed Fagan" on the laminated sheet was Feighan's alternate cell phone, but he was unable to recover subscriber information on that phone because the phone number was registered to a prepaid cellular service provider. Thereafter, on September 14, 2009, Detective Vinter applied for and obtained the toll records for the phone number, but none of the incoming or outgoing calls matched phone numbers known to the police. Detective Vinter memorialized this "updated report" from CS1 in a police report dated September 22, 2009. Ex. D-1 at USA-4530.

Next, Detective Vinter met with Confidential Source Two ("CS2") in November 2009. Detective Vinter and CS2 had a fifteen-year relationship, beginning when Detective Vinter worked as a police officer in Whitpain Township. In November 2009, CS2 reported that Tronoski and Jack Pennington, a former police officer, were actively taking bets in Montgomery County. During follow-up meetings, CS2 provided three material pieces of information: (1) Tronoski was referring new bettors to Pennington; (2) Pennington was collecting bets and settling accounts as a sub-bookmaker for Tronoski; and (3) bettors could make wagers using the website at ExclusiveWager.com, a toll-free phone number, or directly with Pennington through his personal phone number. Detective Vinter did not memorialize these conversations with CS2 in police reports. The conversations were first documented in an affidavit dated January 15, 2010, which the police used to obtain authorization for GPS surveillance of Tronoski's vehicle.

Detective Vinter believed CS2 was reliable. Since 2006, CS2 had provided Detective Vinter accurate and reliable information that led to the arrest and prosecution of four individuals for drug-related offenses. Moreover, factual information provided by CS2 in November 2009 was corroborated by police. CS2 knew of Tronoski's 2003 arrest for illegal bookmaking and correctly provided Tronoski's home address, phone number, place of business, and the make and model of his vehicle. The police also verified that Pennington was a former police officer. Based on information provided by CS2, police applied for and, on December 15, 2009, obtained authorization to examine and monitor the toll records for Tronoski's cellular phone. Police verified that between August 31, 2009 and February 12, 2010 Tronoski had 120 cell phone contacts with Pennington.

B. Final Stages of Investigation and Wiretap Surveillance

The police initiated wiretap surveillance on five defendants during the final stages of the investigation: (1) Tronoski, (2) Feighan, (3) Joseph Vito Mastronardo, Jr., (4) Eric Woehlcke, and (5) John Mastronardo. All wiretaps were authorized by order of Pennsylvania Superior Court Judge Susan Gantman. The relevant dates for each wiretap are as follows:

Authorization Interception Authorization Recordings Granted Ends Expires Sealed Tronoski February 24, 2010 March 26, 2010 March 26, 2010 April 7, 2010 Feighan February 24, 2010 March 26, 2010 March 26, 2010 April 7, 2010 Joseph Vito March 1, 2010 April 1, 2010 April 29, 2010[3] April 7, 2010 Mastronardo, Jr. Woehlcke March 9, 2010 April 1, 2010 April 8, 2010 April 7, 2010 John March 12, 2010 April 1, 2010 April 11, 2010 April 7, 2010 Mastronardo

Lieutenant Detective Stephen Forzato was responsible for the investigation, including supervision of the wiretaps. Lieutenant Forzato had participated in forty-three wiretaps during his career and had twenty years of experience teaching classes and facilitating lectures on state and federal wiretap law. Five detectives worked under Lieutenant Forzato's supervision on the investigation: (1) Vinter, (2) Michael Reynolds, (3) David Holtzman, (4) Erick Echevarria, and (5) David Evans.

In accordance with Pennsylvania law, Judge Gantman required that monitors "minimize" interceptions - stop listening and recording non-pertinent calls to protect the privacy interests of the subjects of the interception. On February 24, 2010, Assistant District Attorney Tonya Lupinacci and Lieutenant Forzato held a meeting with all wiretap monitors to discuss a minimization directive issued by ADA Lupinacci. The minimization directive stated that (1) privileged communications should not be intercepted and that (2) non-pertinent calls should not be recorded unless the call was less than five minutes and took place within the first five days of the wiretap. Thereafter, non-pertinent conversations were to be "spot monitored, " meaning that monitors would listen to thirty seconds of the conversation at periodic intervals to determine if the conversation had again become pertinent. Additional monitor's meetings were held on March 1, 2010, March 9, 2010, and March 12, 2010. After five days of interception, Lieutenant Forzato met with monitors to "tighten up" the bounds of pertinent and non-pertinent conversations for each wiretap.

All monitors were certified under Pennsylvania law to listen to the wiretaps. Sign-in logs show that between four and seven monitors watched the intercepted lines each day. The police usually assigned two monitors to a twelve-hour morning shift from 7:00am to 7:00pm and two monitors to a twelve hour evening shift from noon until midnight. Regularly, one to three additional monitors would sign in during business hours to help monitor the ongoing wiretaps. The sign-in logs did not include other technicians present in the wiretap facility who could assist if needed. After an intercepted call, monitors would record in monitor logs, inter alia , whether the call was pertinent or non-pertinent and whether the call had been minimized.

Every ten days, police submitted status reports on the open wiretaps to Judge Gantman. Judge Gantman reviewed the monitor logs, the total number of intercepted calls, the number of calls minimized, and relevant evidence recovered from pertinent conversations. The aggregate number of minimized calls is as follows:

Calls Longer Calls Longer Calls Longer Total Calls than Two than Two than Two Minutes Minutes Deemed Minutes that Non-Pertinent[4] were Minimized Tronoski 1030 237 68 55 Feighan 149 80 34 16 Joseph Vito 868 309 184 32 Mastronardo, Jr. Woehlcke 1010 414 142 81 John 746 313 70 99 Mastronardo Total for 3803 1353 498 283 Investigation

Police conducted wiretaps from a facility they referred to as "the plant." Each wiretap had a monitoring station in the plant that would present call data and audio to a monitor. Four monitoring stations were placed in one office, and the fifth monitoring station was placed in an adjacent room. The police used Pen-Link - a third-party vendor - to design, install, and support the computer software that intercepted communications on mobile devices. Pen-Link connected each monitoring station to the wiretap server, which housed the drives that transcribed the wiretap recordings onto optical discs. Data on optical discs could not be altered or modified, but new data could be added to the discs until they were finalized and ejected. Pen-Link had the ability to remotely access the wiretap server to provide technical support and assistance, which police referred to as "tunneling in."

Lieutenant Forzato relied on Pen-Link technical support to resolve problems with the computer software. Electronic interception using the Pen-Link system was different than electronic interception of hardwired phone lines. Pen-Link worked with the phone company to push all incoming and outgoing calls on intercepted phone numbers into a "conference call, " from which the police could hear the audio portions of the call. The phone company would provide corresponding call data containing the time and participating phone numbers, and Pen-Link's software would display and record the call data and audio on the appropriate wiretap.

On March 10 and March 11, 2010, seven phone calls were intercepted with no audio or call data. On March 11, 2010, Lieutenant Forzato contacted Pen-Link to "tunnel in" to the wiretap server to resolve the problem, and they did so.[5] While Pen-Link had control of the server, someone using Feighan's phone initiated a call to Larry Nelson. Although the call data appropriately appeared on Feighan's monitoring station, the audio "split" onto Joseph Vito Mastronardo, Jr.'s monitoring station and was recorded on Joseph Vito Mastronardo, Jr.'s optical disc. Lieutenant Forzato believed this constituted an "alarming evidentiary problem" because the split threatened the integrity of the ongoing wiretaps. Due to the call data and audio splitting, Joseph Vito Mastronardo, Jr.'s wiretap recording contained audio from a call that he did not place without corresponding call data to identify the source of the conversation. Lieutenant Forzato believed that Pen-Link caused the call data and audio files to split on March 11, 2010, [6] so he ordered that Pen-Link not "tunnel in" for the remainder of the ongoing wiretaps.

Lieutenant Forzato mistakenly believed that the wiretap recordings could only be finalized by having Pen-Link "tunnel in" to the wiretap server, and he had prohibited them from doing so because he thought "tunneling in" would jeopardize ongoing wiretaps. He allowed only Pen-Link to finalize wiretap recordings to avoid errors in the process.[7] Surveillance on the Tronoski and Feighan wiretaps ended on March 26, 2010, but Lieutenant Forzato decided that he would wait until surveillance on ...


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