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UNITED STATES v. SCARPELLI

May 2, 1989

UNITED STATES OF AMERICA, Plaintiff,
v.
GERALD H. SCARPELLI, Defendant



The opinion of the court was delivered by: SHADUR

 MILTON I. SHADUR, UNITED STATES DISTRICT JUDGE:

 On July 16, 1988 FBI Special Agents John O'Rourke ("O'Rourke") and Thomas Noble ("Noble") arrested Gerald Scarpelli ("Scarpelli") for a variety of crimes the agents described in these terms (Tr. 40): *fn1"

 
1. possession of a submachine gun;
 
2. carrying a weapon during an active crime of violence;
 
3. interference with commerce by robbery;
 
4. violation of the Federal Firearms Act; and
 
5. violation of the Hobbs Act.

 During extended custodial interrogation by the agents later that evening and continuing into the early morning hours of July 17, Scarpelli made a substantial number of self-incriminating statements.

 Scarpelli has moved to suppress those statements under Fed. R. Crim. P. 12(b)(3). Because this Court must independently determine the voluntariness of Scarpelli's confession under 18 U.S.C. ยง 3501, it held an evidentiary hearing December 21-22, 1988. *fn2" Both parties have filed post-hearing memoranda. For the reasons stated in this memorandum opinion and order, Scarpelli's motion is denied.

 Facts *fn3"

 On March 4, 1988 O'Rourke and Noble stopped Scarpelli as he was driving from his home in Downers Grove, Illinois (Tr. 305). Scarpelli pulled his car into a parking lot on 55th Street and the agents pulled up alongside his car (Tr. 249-51). Noble got out of the passenger side of his car, showed Scarpelli his badge and ordered him to get out of the car and put his hands on the roof. O'Rourke then searched Scarpelli (Tr. 251-53).

 Scarpelli was placed in the back seat of the agents' vehicle. Noble sat with Scarpelli in the back seat, while O'Rourke sat in the front. After Scarpelli asked why he was under arrest, Noble replied (Tr. 253):

 You're not under arrest. We just want to talk to you.

 Scarpelli stayed in the car, and the agents discussed a number of topics with him (Tr. 306-10):

 
1. They questioned Scarpelli about an ongoing narcotics investigation, but he denied any involvement. He said he didn't participate in that type of activity and "he didn't even use aspirin."
 
2. They asked Scarpelli about the shooting of Dominick Senese. He claimed an alibi for that crime but said he would prefer to give that in the presence of counsel.
 
3. They told Scarpelli the FBI had been investigating him for approximately 18 months and had built a substantial case against him, as a result of which the agents believed he would be indicted. Scarpelli did not respond.
 
4. They told Scarpelli they were seeking his cooperation with the government and they had surveillances showing him meeting with various members of organized crime in Chicago. Scarpelli denied any involvement with organized crime and said "it would go against his grain" to become an FBI informant. *fn4"
 
5. They asked Scarpelli if Edward Genson ("Genson") was his attorney. Scarpelli said "I don't know" and asked whether he needed one.
 
6. At the end of the conversation, the agents served Scarpelli with a grand jury subpoena. Scarpelli's response was "I'll have to bring an attorney now."

 Scarpelli testified the entire meeting lasted 20 to 30 minutes (Tr. 254).

 Shortly after the agents' departure Scarpelli phoned his lawyer, Genson's partner Jeffrey Steinback ("Steinback"). Later that afternoon Scarpelli met Steinback in his downtown Chicago office and recounted the just-described encounter. Steinback then phoned Strike Force Attorney John Burley ("Burley"). During that conversation (Hearing Stip. 1):

 
2. Steinback asked whether Scarpelli was presently a target of an investigation. Burley said "no," but "his conduct was being considered in connection with the conduct of others and would consider notifying him if any change occurred in [Scarpelli's] status."
 
3. Steinback asked Burley to make a note of the fact that Scarpelli's attorneys wished to be present for any future contacts between the government and Scarpelli.

 On March 14 Scarpelli, accompanied by Steinback, went to the FBI office to comply with the subpoena. Noble and O'Rourke met Scarpelli there. Steinback told the agents Scarpelli did not wish to speak with them and asked to accompany Scarpelli during the fingerprinting and photographing process. That latter request was denied.

 After taking Scarpelli's fingerprints and photographs, the agents again solicited his cooperation. They asked no questions and specifically told him he should answer no questions (Tr. 102-03). But they again told him they had evidence of his criminal involvement and there was "a strong possibility there would be a future case against him" (Tr. 103). They also reminded him "his life was in danger because of a possible syndicate assassination" (id.). Scarpelli still did not agree to cooperate.

 On July 16, 1988 a car driven by Scarpelli's girl friend Tricia Radzus ("Radzus"), with Scarpelli as passenger, entered the parking lot of the Sheraton-Homewood Inn Motel, located at 174th Street and Halsted Avenue in Homewood, Illinois (Tr. 37). Radzus drove past the parked car of James Basile ("Basile") to the rear of the motel. Radzus then drove around and stopped under the canopy in the front of the motel. Finally, Radzus drove back around to the rear of the motel and parked next to Basile's car. *fn5"

 Scarpelli then got out of the car, removed a bag from the car and placed it in Basile's trunk. Basile and Scarpelli then got into Basile's car, with Scarpelli on the passenger side. At that point, a number of FBI special agents approached and arrested Scarpelli (Tr. 38).

 Scarpelli was searched, handcuffed and placed in an FBI van. Noble occupied the driver's seat and O'Rourke sat in the back seat with Scarpelli. O'Rourke advised Scarpelli of his Miranda rights, with Scarpelli confirming that he understood each of them (Tr. 40). As the agents then drove to the federal building in Chicago, O'Rourke told Scarpelli not to ask or answer any questions. Instead the agents just wanted him to listen and "wanted to explain to him what was going on; what was going to happen" (Tr. 40-41).

 O'Rourke testified, and this Court finds, the conversation went this way (Tr. 41-44):

 
A. The conversation consisted of myself and Special Agent Noble informing Scarpelli of basically the -- what evidence had been gathered against him. And I told him that James Peter Basile, who he knew as Duke Basile, a close associate of his, and who had been present during the arrest, who he had been meeting with regularly over a period of approximately two years, had been secretly working as a U.S. Government cooperating witness; that Basile had been wearing a concealed body recorder and a transmitter; and that all of the conversations between Basile and Scarpelli had been electronically recorded and listened to by FBI agents; that -- that the -- that the meetings that he had held with Basile and with other members of the Chicago crime syndicate, such as Salvatore Cautedella and Michael Sarno and various other people, had been surveilled by FBI agents, and that surveillance photographs had been taken. He was shown samples of surveillance photographs showing him meeting with Basile at various locations. He was informed that his involvement in a residential burglary which occurred in Michigan in August of 1987, where they left from the Sheraton-Homewood Inn, and he and Basile and James Mundo drove to Michigan City, Indiana to conduct a residential burglary during the course of which a safe was opened and approximately $ 30,000 in cash was taken and in which Scarpelli had carried a Mac 10 submachine gun had all been under FBI surveillance and that it had been videotaped; that the conversations had been electronically recorded; and that upon the return of -- from Michigan City, Indiana, back to the Chicago area they had been under close FBI surveillance; that their conversations had been recorded as they split up the money; and that another incident in which there was a stolen Chevrolet and a stolen Ford van secreted in a garage called The Champion Liquidators Garage, at 3712 West LeMoyne Avenue on the North Side of Chicago, in which there had been a duffel bag containing a Mac 10 submachine gun, pistols, revolvers, Halloween-type false face masks, walkie-talkies, handcuffs, gloves, books containing the crystal numbers and frequencies of various law enforcement agencies and various other materials, had -- had been under close FBI surveillance; that the vehicles had been affixed with electronic listening devices; that surreptitious entry had been made by Court order by FBI agents, and that the weapons had been photographed and that they had been made inoperable so they could -- they couldn't fire.
 
And we showed Scarpelli photographs of the submachine gun and other weapons and materials. I showed him photographs of the garage. I informed him that he had been observed along with a criminal associate of his named Robert Bellavia physically removing the two vehicles, which were stolen vehicles, from the garage and driving them to another location a few blocks away during August of 1987.
 
Q. Did you speak of a date?
 
A. August -- excuse me. During -- I did. I'm sorry. Yes. During, I believe it was April of 1987. Excuse me. I'm thinking of Michigan City.
 
We informed him that we had had him under close surveillance during a period when he and Basile had planned to conduct a burglary of a jewelry store in Berwyn, Illinois.
 
We showed him surveillance photographs of them actually looking in the jewelry store window, examining the front lock of the jewelry store; advised him he had been observed looking at the burglar alarm box at the back of the jewelry store on numerous occasions. Showed him some surveillance photographs taken during this period, and various other developments that had occurred during the case to show him that we had, in fact, developed a sufficient amount of evidence against him; and reminded him, of course, that he was on federal parole at that time and had been just arrested in possession of a submachine gun and a pistol, and we knew that he had been en route to participate in an armed robbery to occur in Bradley, Illinois.

 After examining some of the photographs, Scarpelli said (Tr. 44):

 
Boy, you guys are pretty slick, You got me real good.

 Just before 9 p.m. the agents arrived at the federal building with Scarpelli. They moved him to an interview room on the ninth floor (Tr. 46), seated him in a chair and handcuffed him to the chair. *fn6" Once again the agents advised Scarpelli of his rights by reading him FBI Form FD-395 ("Advice of Rights")(Govt. Ex. 89). Scarpelli was asked to read the form and, when asked if he understood his rights, replied (Tr. 47):

 
Yeah, I know. I've been through it before.

 Scarpelli was also asked to sign the waiver portion of the form. He responded in effect (id.): *fn7"

 
No, Jack, I don't want to sign it right now. Let's talk for a while first. I'll sign it later.

 Scarpelli then pushed the form back on the desk, where it remained until he signed it later in the evening (id.)

 Scarpelli was specifically offered the opportunity to call his attorney. Indeed, the phone was pushed toward him and he was told he could call anyone he wanted (Tr. 59). Scarpelli declined the offer. He expressed concern that word of his arrest would leak out. O'Rourke testified that Scarpelli (id.):

 
asked, for instance, who else knew that he had been arrested, and generally expressed concerns that no one be informed and that he did not want his attorney notified or anyone else. *fn8"

 During the interrogation Scarpelli was repeatedly offered coffee, soft drinks and food. He declined those offers. Scarpelli did ask and was permitted to use the bathroom on several occasions (Tr. 60).

 At the beginning of the interrogation the agents laid out the evidence against Scarpelli and discussed the various crimes he was suspected of committing. According to O'Rourke (Tr. 62-63):

 
He was informed that in view of the evidence against him that the best policy would be for him to tell the truth, to co-operate fully, to consider becoming a U.S. Government witness, and co-operating completely in providing information, historical and current, concerning his membership and activities in the organized crime syndicate in Chicago.
 
And an appeal was made to him to become a U.S. Government witness, to tell the truth. And he was advised any co-operation, any such information provided to [sic] him would be made known to federal prosecutors and that was his best policy.
 
* * * *
 
He was advised that we wanted his total cooperation. We wanted to be able to debrief him in detail. That he -- all of the information provided by him, if he decided to co-operate would be carefully checked out; that he would be expected to testify in federal court, and actively participate in investigations by the FBI that were ongoing. We wanted him to co-operate completely and totally.

 To that point the conversation had lasted 30 to 40 minutes (Tr. 61). At about 10 p.m. Scarpelli inquired about Radzus, asking whether she was in the FBI office and whether she had been arrested. He also expressed concern that Radzus might call someone, thereby revealing his arrest (Tr. 54-55). Shortly thereafter the agents had Radzus brought to Scarpelli's interview room. They were allowed to talk alone for 5 to 10 minutes (Tr. 55-6; 120-21; 315). After talking to Radzus, Scarpelli told the agents (Tr. 57):

 
that he had advised her that he wanted to continue to speak with the agents, and that he did not want her to make any telephone calls and to call an attorney or to call anybody at all. He wanted to -- he wanted it kept secret that he had been arrested.

 At about 11 p.m. Scarpelli decided to cooperate (Tr. 121) and started to answer the agents' questions (Tr. 62). After about 45 minutes they all took a break (Tr. 121). At midnight the agents renewed their request that Scarpelli sign the waiver of rights form (as Scarpelli had earlier said he would do): They once again read Form FD-395 to Scarpelli, and he then read over the form and signed the waiver portion at the bottom. Noble and O'Rourke filled in the time and date and both signed the form as witnesses (Tr. 47-48, 319; Govt. Ex. 89).


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