United States v. Gigliotti

145 F.Supp.3d 203

UNITED STATES of America,

v.Angelo GIGLIOTTI, Eleonora Gigliotti, Gregorio Gigliotti, and Franco Fazio, Defendants.

No. 15 CR 204(RJD).

United States District Court, E.D. New York.

Signed Nov. 6, 2015.

Nicole M. Argentieri, United States Attorneys Office, Brooklyn, NY, for United States of America.

Gerald J. McMahon, Law Office of Gerald J. McMahon, Richard Ware Levitt, Nicholas Gregory Kaizer, Levitt & Kaizer, Raymond Granger, Granger & Associates, LLC, New York, NY, for Defendants.

MEMORANDUM & ORDER

DEARIE, District Judge.

Defendants Gregorio Gigliotti, his wife Eleonora Gigliotti, and their adult son Angelo Gigliotti are charged with, inter alia, conspiracy to import and importation of cocaine, in violation of 21 U.S.C. §§ 952(a), 960(a)(1), 960(b)(1)(B)(ii), and 963. Indictment, ECF No. 45; Superseding Indictment, ECF No. 51. The cocaine was allegedly stashed inside shipments of produce sent from Costa Rica to an import-export company owned by Gregorio. Memorandum of Law in Support of Pretrial Motions [hereinafter Defs.' Mem. ], ECF No. 76 at 3.

Defendants submit joint pretrial motions, seeking, inter alia, an order from the Court: (1) suppressing the evidence seized from Cucino Amodo Mio, a restaurant owned by Gregorio and Eleonora, as the fruit of a pretextual and warrantless search; and (2) suppressing evidence obtained from a wiretap on the landline in Cucino Amodo Mio, because the wiretap was not supported by probable cause. For the reasons discussed below, the Court denies defendants' suppression motions.

BACKGROUND

1. Wiretap of Cucino Amodo Mio's Landline

On June 30, 2014, the Honorable Arthur D. Spatt, United States District Judge for the Eastern District of New York, granted the government's application for authorization to intercept conversations on the landline in Cucino Amodo Mio. Defs.' Mem. at Ex. 3 (affidavit in support of wiretap). According to the affidavit submitted in support of the wiretap application, the sources of probable cause for the wiretap included, inter alia, the following:¹

Beginning in or about 2007, the Italian Justice Ministry, together with Italian law enforcement authorities, commenced an investigation into sources of drug trafficking into Italy, including by individuals based in New York. Id. at ¶ 19. Ultimately, hundreds of people were arrested, both in Italy and the United States. Id. Among those prosecuted in the Southern District of New York were an Italian national living in Queens, Giulio Schirippa, and an American co-conspirator, Christopher Castellano. Id. Castellano proffered with the government, advising that he had personally observed his and Schirippa's cocaine supplier meet with Gregorio and later learned that Gregorio had purchased $50,000 in cocaine. Id. at ¶ 21. Castellano was shot and killed in 2009, while free on bail pending disposition of his case. Id. at ¶ 22.

Castellano and Schirippa's cocaine supplier (“CI–1”) later pled guilty to a narcotics-trafficking felony charge and cooperated with the government.² Id. at ¶ 23. During this cooperation, CI–1 informed the government that he/she had sold cocaine to Gregorio on numerous occasions, which Eleonora would then take to Italy for distribution. Id. at ¶ 24–25. CI–1 believed that Gregorio was purchasing this cocaine through funding obtained from Anthony Federicci—a member of the Genovese organized crime family La Cosa Nostra—because he/she had observed Gregorio and others bringing large sums of cash to and from a social club adjacent to Cucino Amodo Mio owned by Federicci. Id. at ¶¶ 12, 25.

A second confidential informant (“CI–2”), also criminally associated with Schirippa, advised the government that Schirippa owed Gregorio a large sum of money and that the informant had once seen Schirippa make a payment of $30,000 in cash to Gregorio. Id. at ¶¶ 26, 28. A third confidential informant (“CI–3”)—an individual with prior narcotics criminal history cooperating in hopes of obtaining consideration on pending criminal charges—said that Gregorio had complained in the informant's presence that Schirippa and Castellano owed him a lot of money for a shipment of cocaine to Italy that they claimed was of poor-quality and un-sellable. Id. at ¶ 29.

In November of 2011, agents conducted visual surveillance of Cucino Amodo Mio and the adjacent social club. Id. at ¶ 30. On November 9, 2011, the agents observed Gregorio meeting with an Hispanic male, John Doe 1 (later identified in a collateral investigation as a cocaine supplier), inside a nearby restaurant owned by Federicci. Id. On November 10 and the morning of November 11, agents observed Gregorio with John Doe 1, as well as two other men, John Does 2 and 3, entering and exiting Cucino Amodo Mio and the adjacent social club. Id. at ¶¶ 31–32. On the evening of November 11, 2011, agents observed John Does 2 and 3 drive up to the social club. Id. at ¶ 32. When the agents later stopped the vehicle for a speeding violation, they found $500,000 stashed inside a hidden compartment. Id. Around this same time, a fourth confidential informant (“CI–4”)—an individual of undescribed background—advised the government that Gregorio had approximately 14 kilograms of cocaine hidden in a safe at Cucino Amodo Mio, which at that time would have been worth approximately $500,000. Id. at ¶ 33.

In February of 2014, Gregorio stated in the presence of CI–3 that he had recently travelled to Italy in search of buyers for 10 kilograms of cocaine and had left 3 kilograms in Italy with his “cousin,” to search for better offers. Id. at ¶ 35. A few months later, an Italian investigation shared its intercept of a call between the Italian phone number of co-defendant Franco Fazio, Gregorio's cousin, and the Cucino Amodo Mio landline. Id. at ¶ 37. On the call, Gregorio asks Fazio if “all the oil [had] been given to [his] buddy.” Id. When Fazio replies yes, Gregorio responds “[o]kay, thirty-one, all right.” Id. The agents believed that “oil” was code for cocaine and “thirty-one” was the price per kilogram of cocaine, in thousands. Id. at ¶ 38.

2. Search of Cucino Amodo Mio

On March 9, 2015, the Honorable Cheryl L. Pollak, United States Magistrate Judge for the Eastern District of New York, granted the government's application to search the premises of Cucino Amodo Mio for records relating to the conspiracy to import cocaine and computers or storage media that may contain such records. Defs.' Mem. at Ex. 1 (affidavit in support of search warrant) at Attachment A. The sources of probable cause for this search warrant included numerous conversations, recorded on the wiretap of Cucino Amodo Mio's landline, implicating Gregorio, Eleonora, and Angelo in a conspiracy to import cocaine from Costa Rica through shipments of produce to Fresh Farm Produce Export Corp. (“Fresh Farm”), an import-export company owned by Gregorio. Id. at ¶¶ 5, 7, 9–13, 17–19, 21–23, 26–29. On a few of these phone calls, Gregorio discusses using the computer in Cucino Amodo Mio's office to send emails to coconspirators and look up shipping containers and implicates Cucino Amodo Mio as being involved in the operations, saying to a co-conspirator that he would contact him through his Cucino Amodo Mio email, not Fresh Farm, because “Cucino Amodo Mio is me as well.” Id. at ¶¶ 25–29 (emphasis added). As a result of information gleaned from these recordings, agents of the United States government were able to intercept two separate shipments of yucca to Fresh Farm and recover approximately 55 kilograms of cocaine stashed inside the containers. Id. at ¶¶ 20, 23.

Also included in the search warrant application was information gathered during a March 3, 2015, warrantless administrative search of Cucino Amodo Mio, conducted by an investigator, from the New York State Liquor Authority (“NYSLA”) at the request and with the participation of two detectives from the New York City Police Department who were part of the criminal investigation. Government's Memorandum of Law in Opposition to the Defendants' Pretrial Motions [hereinafter Gov't Mem. ], ECF No. 95 at 5–7; ECF Nos. 77–79 (affidavits in support of defendants' pretrial motions). Upon arrival at the restaurant, the NYSLA investigator encountered Gregorio, Angelo, and Gregorio's other son, Andrea, and informed them that he was there to inspect the restaurant pursuant to state liquor laws. ECF Nos. 77–79; Gov't Mem. at 5–7. Over the next 45 minutes to an hour, the investigator and the two detectives searched every room of the restaurant, which occupies the main floor and basement of a three story building. ECF Nos. 77–79; Defs.' Mem. at Ex. 1, ¶ 3. In the restaurant's basement, the detectives found and photographed three locked safes, and in the restaurant's office—a separate area in the basement—the detectives found and photographed a computer, a landline, and a file cabinet with a binder marked “Fresh Farm Produce” on top. ECF Nos. 77–79; Gov't Mem. at 5–7; Defs.' Mem. at Ex. 1, ¶ 3. At the end of the visit, the NYSLA investigator prepared a violation report for an improper outdoor bar and homemade wine. Gov't Mem., Ex. 2.

Six days later, agents applied for a search warrant for Cucino Amodo Mio. Defs.' Mem., Ex. 1. The application included pictures and descriptions of the restaurant's layout and confirmed the presence of the safes, landline, computer, and Fresh Farm records in the basement. Id. at 3, 25. The search was executed on March 11, 2015, and produced significant physical evidence, including seven illegal firearms, ammunition, over $100,000 in cash, a computer, shipping records, and a handwritten ledger showing the movement of large sums of money. Gov't Mem. at 8.

PROCEDURAL HISTORY

Defendants Gregorio, Eleonora, and Angelo were indicted on April 22, 2015, on one count of conspiracy to import cocaine. ECF No. 45. A superseding indictment filed on May 6, 2015, added Fazio as a fourth defendant, as well as five more counts, including, inter alia, importation of cocaine and...