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UNITED STATES v. PLESCIA

January 9, 1991

UNITED STATES OF AMERICA, Plaintiff,
v.
VICTOR PLESCIA, FRANK BONAVOLANTE CAMILLIO GROSSI, also known as Canillo Gross, Camillo Grossi, and Gam, NICKALOS RIZZATO, ANTHONY GROSSI, NORMAN DEMMA, LIZZIO DESANTIS, also known as Lee Lizzio, KEVIN GEIGER, and CORA DENA MAE PLESCIA, Defendants



The opinion of the court was delivered by: NORGLE

 CHARLES R. NORGLE, UNITED STATES DISTRICT JUDGE

 This case arises under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended 18 U.S.C. § 2510, et seq. (Title III), which regulates the interception of wire, oral and electronic communications.

 Counsel for Anthony Grossi, Victor Plescia, Norman Demma, and Dena Plescia have filed motions to suppress evidence obtained by electronic surveillance. Attorney Lopez, representing Victor Plescia, has also filed a motion "on behalf of all defendants."

 The government has filed a voluminous response to all motions. The government's response is accompanied by copies of all orders entered by Chief Judge Grady, who authorized the surveillance, and various other documents and affidavits. The government's response, in dealing with the defendants' motion, contains specific references to these documents.

 Distilled, the grounds for defendants' suppression motions are: (1) that the application and supporting affidavit submitted with respect to the November 7 Title III order "fail to set forth facts which allege that normal investigative procedures have failed in the investigation" or "a complete and detailed statement that normal investigative procedures have been tried and have failed or reasonably appear unlikely to succeed if tried" and thus do not meet the requirements of 18 U.S.C. § 2518(1)(c); (2) that the applications and supporting affidavits for both Title III orders fail to establish the probable cause necessary under 18 U.S.C. § 2518(3) to support the Chief Judge's issuance of the November 7 and December 27 Title III orders; *fn1" and (3) that the Title III orders were "improperly executed by law enforcement officers."

 In response to the defendants' motion to suppress the evidence obtained from the court-authorized electronic surveillance, the government traces the record in great detail. The case involves a drug investigation which began in April, 1989, when the Drug Enforcement Administration (DEA) received information from a cooperating individual. The investigation ended in October, 1989.

 The investigation disclosed that after a number of conversations with various defendants, Victor Plescia and Nickalos Rizzato sold 12 ounces of cocaine, in April, 1989, and one kilogram of cocaine, in May, 1989 to undercover agents.

 The DEA discovered that Victor Plescia used a mobile phone, number 312/618-4233, and a pager number 312/306-3022, to carry out drug transactions.

 Chief Judge Grady on November 7, 1989, issued authorization under Title III for surveillance for thirty days. The surveillance ended December 7, 1989. On December 27, 1989, Chief Judge Grady authorized an extension of the November 7, 1989, order for an additional thirty days. The December 27 authorization ended January 26, 1990. As required, affidavits were submitted by the government in support of the applications for the November 7 and the December 27, 1989, orders.

 Defendant Plescia asserts a failure to comply with the requirements of § 2518(1)(c) of Title 18 of the United States Code, which provides that each application for Title III order shall include:

 
a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous.

 The government, however, correctly replies that the Seventh Circuit has held that "because subsection (c) of . . . [section 2518 of Title 18 of the United States Code] is worded in the disjunctive, the government is required to establish the need for electronic surveillance by demonstrating one of the three alternatives listed [in subsection (c)]." United States v. Zambrana, 841 F.2d 1320, 1329 (7th Cir. 1988). The government here chose the last two alternatives, namely, that "other investigative procedures . . . reasonably appear to be unlikely to succeed if tried or to be too dangerous." Thus, defendant Victor Plescia's claim that the Title III evidence must be suppressed because the application and supporting affidavit fail to set forth facts alleging that normal investigative procedures have been tried and failed is not founded. In Zambrana, 841 F.2d at 1219, the Seventh Circuit clearly stated that:

 
[the] statute does not require that other investigative procedures actually be implemented before an order may be issued for the interception of wire communications . . . : 'it is not required that a wire tap be used as a last resort but only that the success of other methods of investigation appear unlikely.'

 Further, the Seventh Circuit takes the position that "'the government's burden of establishing its compliance with [subsection 2518(1)(c)] is not great' and that the requirement that the government exhaust 'normal investigative procedures' be reviewed in a 'practical and common-sense fashion.'" Zambrana, 841 F.2d at 1329 (quoting United States v. Anderson, 542 F.2d 428, 431 (7th Cir. 1976)). Chief Judge Grady determined that the government's application and affidavit for the November 7 order set forth sufficient facts and statements showing that other investigative procedures reasonably appear to be unlikely to succeed or to be too dangerous. This court has reviewed the record and agrees with Judge Grady's finding. The affidavit of Special Agent David Grant, which was incorporated by reference into the government's November 7 application, sets forth in detail the reasons why normal investigative procedures appear unlikely to succeed and would be extremely dangerous. Agent Grant explains that: (1) normal investigative procedures have been successful to some extent but do not seem likely to succeed in furthering all aspects of the investigation, including fully identifying all members of the conspiracy; (2) the CI, who had been useful in the investigation thus far, was unable to furnish information or introductions that would fully identify all the members of the narcotics conspiracy being investigated, and the CI was reluctant to testify for fear of possible physical harm and retaliation from members of the criminal enterprise if the CI's position as a confidential informant became known; (3) use of confidential informants as well as standard undercover techniques would not likely provide useful information on the location of hidden drug caches, proceeds and assets; (4) Agent Grant believed it was virtually impossible to foresee an opportunity for the undercover agent or the CI involved in the investigation to be introduced to Victor Plescia's or Nickalos Rizzato's sources of supply in the conspiracy; (5) extensive surveillance would not lead to complete identification of all members of the conspiracy because narcotics transactions often occur out of public view, and because, based on Special Agent Grant's experience, extensive surveillance conducted in narcotics investigations is often discovered by subjects of the investigation who are themselves conducting surveillance or counter-surveillance, and because Plescia -- as indicated in paragraph 28 of the affidavit -- claims to have the ability to check license plate numbers of suspected law enforcement vehicles; (6) because one of the subjects of the investigation -- Nickalos Rizzato -- was a Chicago Police Officer, use of grand jury subpoenas would threaten the investigation because the service of the subpoena might become known to police officers associated with Rizzato and thus reveal the existence of the on-going narcotics investigation; (7) telephone records, pen registers and computer extractions do not indicate the time, place, or manner of delivery of narcotics or the methods of distribution and do not specify the identity, roles and participation of the persons involved in the calls; (8) search warrants could not be used because the investigating agents did not have any information as to a specific location where narcotics were being concealed and further search warrants would not necessarily achieve the goal of identifying all members of the conspiracy and discovering the methods of distribution.

 The movants, without specificity or supporting documents, next assert that the applications and supporting affidavits for the wiretap orders failed to set forth sufficient probable cause in a number of respects, resulting in the violation of the requirements of certain provisions of § 2518 of Title 18 of the United States Code and the violation if the fourth and fourteenth amendments of the Constitution.

 Section 2518(3) of Title 18 of the United States Code sets forth the probable cause requirements for Title III authorization that are relevant to defendant's probable cause claims ...


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