United States v. Bianco (998 F.2d 1112, 1993)

GEORGE C. PRATT, Circuit Judge:

Trial of this organized-crime racketeering case commenced on April 17, 1991, and continued for 45 days. All seven defendants were convicted of belonging to a RICO conspiracy in violation of 18 U.S.C. § 1962(d). Five of them were convicted of related RICO substantive charges under 18 U.S.C. § 1962(e). Five were convicted of either conspiracy or substantive violations of 18 U.S.C. § 1959, which prohibits violent crime in aid of racketeering. Two were convicted of wire fraud in violation of 18 U.S.C. § 1343. One was convicted of extortion in violation of 18 U.S.C. § 894(c), All defendants have appealed.

The RICO charges, the principal crimes at issue, focused on the organized-crime Patr-iarca family of La Cosa Nostra (LCN) as the enterprise, which operated in New England over a period of many years under the leadership of Raymond L.S. Patriarca, who died in 1984 after designating his son, Raymond J. Patriarca, and William Grasso of New Haven, Connecticut, to head the enterprise.

The RICO charges were amply supported at trial by evidence that established not only the existence and history of the Patriarca family enterprise, but also each defendant’s participation, or agreement to participate, in at least two of a long list of predicate acts of racketeering activity, including murder, drug trafficking, extortion, obstruction of justice, and gambling.

On appeal, defendants raise 42 different points and argue them in a total of 411 pages of briefing. They challenge the indictment, the jury charge, the sentences, the makeup of the jury, numerous evidentiary and procedural rulings, and the sufficiency of the evidence. To all that, the government responds with two briefs totaling 270 pages.

We have carefully reviewed all of defendants’ arguments in light of the record, briefs, and oral argument, and we find most of them to be so lacking in merit as to be unworthy of discussion. One of defendants’ arguments — their all-out attack against the “roving bug” tape recording of their LCN initiation ceremony — requires extensive analysis. Two other arguments — a claimed flaw in the makeup of the jury panel, and the admission of evidence obtained from a search of defendant Failla’s private home in East Hartford, Connecticut — require brief comment. We will discuss first the latter two arguments, and then take up defendants’ challenge to the government’s “roving bug”.

A. Jury Panel.

Defendant Milano is joined by his co-defendants in contending, for the first time on appeal, that the systematic, albeit inadvertent, exclusion of Blacks and Hispanies from the qualified jury wheel of the Hartford division of the District of Connecticut, between late 1989 and late August 1992, resulted in a violation of their sixth-amendment right to a fair trial. During this period, through an apparent computer-related error in processing names and addresses, the wheel included ■no citizens from the division’s principal cities, Hartford and New Britain, where two-thirds of its voting-age, minority population resides. Defendants argue that this denied them a fair cross-section of jurors in the community.

Defendants base their claim, in large measure, on Judge T.F. Gilroy Daly’s order dated August 26, 1992, made in a separate case, where the same defective jury panel had been used. United States v. Osorio, 801 F.Supp. 966 (D.Conn.1992) (inadvertent exclusion of residents of New Britain and Hartford communities from qualified jury wheel, resulting in exclusion of approximately two-thirds of Blacks and Hispanies in the division as source of names for grand jury selection, constituted systematic exclusion of those groups from jury-selection process and gave rise to prima facie fair-cross-section violation).

Osorio may well be distinguishable, because it was based on a timely pretrial challenge to the juror-selection process, and it involved a grand jury, not a petit jury.. We do not, however, address the merits of defendants’ challenge to their jury, panel on this direct appeal after conviction. The issue was not presented to the district court; the record before us in this case provides an inadequate basis to resolve the issue. We therefore leave the issue to be pursued through whatever post-conviction remedies defendants may still have available to them.

B. Admission of - Evidence Seized from Failla’s Home.

Defendant Failla contends that the trial court erred in refusing to suppress certain evidence that was seized during a search of his home. Failla specifically claims that the warrant authorizing the search was defective because it was not particular enough to limit the scope of the search. The government responds by arguing that (1) the descriptions used in the warrant at issue are more narrow than descriptions upheld in other cases; (2) even if the warrant was not particular enough, any ambiguity in the warrant is resolved by reference to the affidavit; and (3) even if we were not to rely on the supporting affidavit, we should uphold the search under the good-faith exception of United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).

1. Background Facts.

The district court issued a warrant to search Failla’s home at 58 Cloverdale Drive, East Hartford, Connecticut, and a small shed outside the home in order to seize the following items:

[N]otes, Ledgers, Envelopes, Papers, and Records Containing Initials, Names, Addresses, Dollar Amounts, Codes, Figures, and the Like: United States Currency.

No further limitation was made, nor was there any reference in the warrant itself to loansharking or any other crime. However, the supporting affidavit of special agent Richard T. Roberts set forth additional de^ tail. It stated that the agents were looking for evidence of Failla’s loansharking, described Failla’s ongoing extortionate activities, and set forth portions of four' conversations in which Failla stated that in his home he had records of his activities.

While the agents were executing their search of the house, they brought particular items they found to special agent William Hutton, who decided whether or not they should be seized. Hutton had familiarized himself with the warrant and its supporting affidavit, and was aware that he was looking for evidence of loansharking.

2. Challenge to the Breadth of the Warrant.

Failla moved in the district court to suppress any evidence seized during the course of the search on the ground that the warrant failed to particularly describe the property to be seized. This motion was denied after a hearing, and a number of the seized items were introduced during the trial.

The fourth amendment requires that warrants “particularly deserib[e] * * * the person or things to be seized.” U.S. Const, amend. IV. The particularity requirement “makes. general searches * * * impossible and prevents the seizure of one thing under a warrant describing another.” Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed. 231 (1927). It prevents a “general, exploratory rummaging in a person’s belongings.” ’ Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564 (1971).

The government points out that where agents have done all that could reasonably have been expected in drawing up a warrant, the inability to provide a more precise description of the criminal instruments to be found will not render the warrant defective. See, e.g., United States v. Young, 745 F.2d 733, 759 (2d Cir.1984) (courts tolerate greater degree of ambiguity where agents have done best they reasonably could under circumstances), cert. denied, 470 U.S. 1084, 105 S.Ct. 1842, 85 L.Ed.2d 142 (1985); United States v. Dunloy, 584 F.2d 6, 8 (2d Cir.1978) (warrant not impermissibly broad when officers were unable under circumstances to provide more precise description).

Those cases, however, do not help the government, for each involved a situation where the government was under emergency , pressures that necessitated a broadly worded warrant. Significantly, there was no such emergency here. Moreover, along with the imprecise language in those cases, the warrants included precise descriptions of some items to be seized as well as specifications of the suspected crimes. See Young, 745 F.2d at 758 (“Quantities of heroin and other controlled substances, other chemical substances, equipment, utensils, paraphernalia, containers, money, notes, documents and papers and other evidence of a conspiracy to distribute and of the distribution * * * [of] controlled substance.”); Dunloy, 584 F.2d at 8 (warrant to seize from safe deposit box “a quantity of cocaine, and additionally, all narcotic drug controlled substance, documents, records and other evidence of distribution and possession with intent to distribute narcotic drug controlled substances”). See also Andresen v. Maryland, 427 U.S. 463, 479, 96 S.Ct. 2737, 2748, 49 L.Ed.2d 627 (1976) (upholding search where exhaustive list of particularly described documents was coupled with open-ended nonparticular authorization). In this case, however, the warrant contained no particular description of items and made no mention of any criminal statute or criminal conduct.

The government’s attempts to characterize other cases as supporting this high a level of ambiguity are easily distinguishable. The government states with misplaced confidence that “[contrary to Failla’s assertion * * *, the descriptions used in the warrant are more narrow then [sic] descriptions upheld in other cases.” The government then points to United States v. Kepner, 843 F.2d 755, 757 (3d Cir.1988), in which the court upheld a warrant that authorized seizure of “documents, records and personal effects.” In that case, though, the court found that the wording of the warrant was not overbroad, because the officers were searching for any proof that the defendant lived in the searched apartment. Id. In that situation, distinguishable from this ease, anything with the defendant’s name on it was evidence.

The other case the government points to'in support of the broad wording of this warrant is United States v. Dennis, 625 F.2d 782, 792 (8th Cir.1980) (“certain books and records relating to the extortionate credit transaction business”). Even in Dennis, however, the documents had to relate, to the crime of extortion, a limitation that is lacking here. If anything, therefore, Dennis undercuts the government’s claim.

We held in United States v. Buck, 813 F.2d 588, 590-92 (2d Cir.), cert. denied, 484 U.S. 857, 108 S.Ct. 167, 98 L.Ed.2d 121 (1987), that a warrant authorizing officers to “seize any papers, things or property of any kind relating to previously described crime” was overly broad, because it “gave no limitation whatsoever on the kind of evidence sought”, even though it did describe the crime under investigation. Here, however, the warrant, when viewed by itself, describes neither the precise items to be seized nor the possible crimes involved.

Based on current case- law, and focusing solely on the warrant itself, we think that the warrant issued to search Failla’s home was broader than we can accept. The fact that we have upheld similarly broad provisions when they were coupled with more particular limiting language, or at least tied to particular crimes, tends to indicate that standing alone, the highly generalized provisions in this case are not supportable.

3. Reliance on the Affidavit.

The failure of the warrant to particularly describe the items to be seized- does not render the warrant incurably defective. While this court has not yet held that ambiguity in a warrant may be resolved by reference to the affidavit submitted to obtain the warrant, other courts have done so in circumstances where the affidavit was incorporated by reference into the warrant and attached to the warrant. See, e.g., United States v. Harris, 903 F.2d 770, 775 (10th Cir.1990); United States v. Vaughn, 830 F.2d 1185, 1186 (D.C.Cir.1987) (per curiam); United States v. Weinstein, 762 F.2d 1522, 1531 (11th Cir.), modified 778 F.2d 673 (1985), cert. denied 475 U.S. 1110, 106 S.Ct. 1519, 89 L.Ed.2d 917 (1986).

In this ease, while the warrant refers to the affidavit there is no express language of incorporation. Nor does it appear that the affidavit was physically attached to the warrant. However, under the facts of this case, the functional purposes of those two requirements — to insure that all parties involved are informed of the scope of and limits upon the authorized search — were fully satisfied. See United States v. Wuagneux, 683 F.2d 1343, 1351, n. 6 (11th Cir.1982) (looking to underlying affidavit even where unattached to warrant, where searchers were adequately informed of limitations on search), cert. denied, 464 U.S. 814, 104 S.Ct. 69, 78 L.Ed.2d 83 (1983); United States v. Zanche, 541 F.Supp. 207, 213 (W.D.N.Y.1982) (“[i]t was also proper to examine the affidavit in deciding the degree of specificity required in the warrant”). Warrants must be read in a “commonsense” fashion, see United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965), and we should not adhere to formal requirements of incorporation and attachment where as here, it is clear that the involved parties were aware of the scope of and limitations on the search.

In this case, it is clear that both the federal agents and Failla were apprised of these factors. The affidavit was present at the time of the search, and spells out quite clear-. ly the nature and purpose of the proposed search. It explains in detail the motivation behind the search and the nature of the documents sought. When the warrant and affidavit are read together, there is no ambiguity. Moreover, although the warrant may not have explicitly incorporated the affidavit, the presence and activity of agent Hutton, who had read the affidavit and who approved each seizure, satisfies us that the limitations included in the affidavit were observed.

In a broader sense, also, the record establishes that this was not an unreasonable search. Far from showing ambiguity, the documents and testimony show that the agents knew what they were looking for, and that in executing the search they took only that which they needed and which was contemplated by the authorizing papers. We caution law-enforcement agents, however, to be sensitive to the need to particularly describe in all warrants and applications the nature, extent and limits upon the search to be authorized in order to conform to the fourth amendment’s particularity requirement. In this case, because of the presence at the search of the affidavit, agent Hutton’s active supervision of the search, the specificity of the affidavit, and the fact that the agents did not exceed the scope of the warrant and affidavit when read together, we conclude that the search- was reasonable.

4. Good Faith Issue.

In light of our conclusion that there was no violation of the fourth amendment’s requirement of particularity, there is no need to consider whether under Leon, 468 U.S. 897, 104 S.Ct. 3405, the challenged evidence could also have been permitted on the theory that the executing officers had acted in good faith in relying on the warrant issued by the district court.

C. The “Roving Bug”.

1. Background Facts.

In the summer of 1989 the FBI received information about a power struggle within the Patriarca family of LCN. In particular, a Patriarca family “underboss”, William Grasso, and a Patriarca “soldier”, Francis Salemme, were murdered. Believing further violence was likely, the FBI intensified its investigation into the Patriarca family.

The FBI believed that some members of the Patriarca family, including Joseph Russo, Vincent Ferrara, and Robert Carrozza, had begun to suspect efforts, by law-enforcement officers to surveil their activities. To thwart those efforts, these individuals, along with others, had begun to communicate in varying ways and locations designed to make routine electronic surveillance difficult.

2. Application for the Interception Order.

By the middle of October 1989, the FBI had learned that the Patriarca family intended to induct several new members into the LCN. One of the candidates for induction was Vincent Federico, who was serving a Massachusetts prison sentence for murder. Recognizing the highly secretive nature of this event, as well as the likelihood that the Patriarca family would seek to avoid any government surveillance of it, the government agents decided to seek a warrant under 18 U.S.C. § 2518(ll)(a) that would authorize a “roving bug”, i.e., interception by electronic means of oral communications without specifying in advance exactly where or when the interception would occur. Specifying Russo, Ferrara, and Carozza as the particular targets of their proposed interception, the government applied to the district court in Massachusetts.

In compliance with the requirements of Title III, the United States Attorney’s office submitted to the Department of Justice a proposed application of special attorney Diane Kottmyer, an affidavit of Walter J. Steffens of the FBI, and' a proposed order. These papers were hand-delivered to the justice department on October 24, 1989. They described in detail the efforts by the targeted individuals to thwart surveillance, as well as information indicating that there was -probable cause to believe that those individuals had engaged in two murders as well as other criminal activities.

The Steffens affidavit made no mention, however, of a possible LCN induction ceremony. The government claims to have omitted it deliberately for several reasons. First, it was satisfied that the affidavit supplied sufficient information to establish the required probable cause that criminal conversations would be obtained. Second, the government was concerned that if it revealed that particular confidential information in the affidavit, and should the information later get into the hands of the defendants, the Patriar-ca family would use violence or other illegal activity to obstruct justice, and the lives of the informants might be placed in jeopardy. In addition, the government did not yet know when and where, or even if, the ceremony would be held.

On October 26, 1989, the FBI learned that the ceremony was planned for Sunday, October 29, 1989, at or near Wellington Circle in Medford, Massachusetts. Suspecting that Federico might be inducted as one of the new members of the LCN, the FBI contacted the Massachusetts’ Department of Correction and learned that Federico had requested a 28-hour furlough, beginning on the morning of October 29, 1989. Federico’s furlough application reported that he intended to stay on Sunday, October 29,1989, at the' house of his brother-in-law, Stephan DiStefano, at 34 Guild Street, in Medford, an address that was near Wellington Circle.

Expecting the justice department’s approval to arrive very soon, Special Attorney Kott-myer, on the morning of Friday, October 27, 1989, delivered to United States District Judge David Nelson, in Massachusetts, copies of her warrant application, Steffen’s affidavit, and the proposed'order. That evening, after the justice department had tele-faxed its approval, Kottmyer met with Judge Nelson. The submitted papers did not reveal (1) anything about the anticipated induction c