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United States v. Plescia, 773 F. Supp. 1068 (N.D. Ill. 1991)

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Greenwald, Asst. Fleissner, Asst. 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. 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, , when the Drug Enforcement Administration DEA received information from a cooperating individual. The investigation ended in October, The investigation disclosed that after a number of conversations with various defendants, Victor Plescia and Nickalos Rizzato sold 12 ounces of cocaine, in April, , and one kilogram of cocaine, in May, to undercover agents. The surveillance ended December 7, On December 27, , Chief Judge Grady authorized an extension of the November 7, , order for an additional thirty days. The December 27 authorization ended January 26, As required, affidavits were submitted by the government in support of the applications for the November 7 and the December 27, , orders. The government, however, correctly replies that the Seventh Circuit has held that '\[b\]ecause subsection c of Zambrana, F. The government here chose the last two alternatives, namely, that 'other investigative procedures In Zambrana, F. Anderson, F. 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. 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. Section 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 and provides, in pertinent part, as follows:. United States v. Leisure, F. The probable cause standard in the Title III context is the same as that use to obtain ordinary search warrants. Tehfe, F. Determining whether or not probable cause exists involves 'a practical, common-sense decision whether, given all the circumstances set forth Gates, U. It is improper to focus on isolated aspects of a probable cause showing, artificially separating those aspects from other facts presented to the magistrate. As in many evidentiary questions, the whole of a probable cause showing often is greater than the sum of its parts. Even seemingly innocent behavior might arouse suspicion in light of other circumstances. See id. The inquiry into the existence of probable cause raises questions of 'probabilities Watson, F. Probable cause requires more than bare suspicion, but need not be based on evidence sufficient to support a conviction, nor even a showing that the officer's belief is more likely true than false. McDonald, F. The Court recognized in Brinegar the ambiguity of situations with which the police are often confronted, and consequently noted that the rule of probable cause permits mistakes reasonably made. The affidavit sets forth information obtained from the confidential informant regarding the narcotics distribution activities of defendants Victor Plescia and Nickalos Rizzato and the DEA's undercover investigation of defendant Plescia's narcotics distribution activities, including: i conversations between the CI and Victor Plescia during April, May, and October of regarding narcotics distribution; ii conversations in June and August of between Victor Plescia and undercover DEA agents regarding narcotics distribution; iii a conversation between the undercover agent and defendant Lee Lizzio on June 12, , during which conversation Lizzio represented Plescia in negotiations with the undercover agent for the sale of cocaine to the undercover agent. The affidavit also sets forth information based on both CI information and observations by law enforcement officers that defendant Victor Plescia used the mobile telephone and pager for which Title III surveillance was sought to conduct his narcotics distribution business. That affidavit not only incorporated by reference the first affidavit that had been submitted for the first wiretap order, but also set forth Title III and visual surveillance evidence of defendants' narcotics activities that had been gathered during the period of the first wiretap. This court agrees with Judge Grady that there was a sufficient showing of probable cause in the government's submissions on December 27, to support the issuance of both Title III orders. Plescia claims that the interceptions were not limited to matters material to the designated crime in that particular, private conversations between husband and wife were intercepted. Malekzadeh, F. Moreover, Title III 'does not forbid the interception of all nonrelevant conversations. United States, U. See also Scott, U. The effort of the law enforcement officers to minimize must be objectively reasonable in light of the circumstances confronting the interceptor. Here, calls between defendant Victor Plescia and his wife and co-defendant, Dena Plescia, were intercepted. It is the government's position, as evidenced by the indictment of Dena Plescia in this case, that Dena Plescia, was involved in defendant Victor Plescia's illegal narcotics activities. Some of these intercepted conversations were related to the narcotics activities of defendants Victor and Dena Plescia and thus were clearly authorized interceptions. See Malekzadeh F. Other intercepted conversations did not involve narcotics related activities. The conversations were minimized as soon as it was determined that the conversations were not narcotics related. A few of the nonpertinent conversations between the defendant and his wife were not minimized where the conversations were about two minutes in length or less. Failure to minimize such very short conversations in a few instances is not 'objectively unreasonable' especially because the officers had reason to believe that Dena Plescia was involved in narcotics related activities with her husband and that members of the narcotics conspiracy involved often spoke in guarded and coded language. See Scott, U. Interception for that length of time was necessary to determine if the calls were narcotics related. See also discussion, infra, pages The agent listening to statements must have a reasonable amount of time to determine whether they relate to the crime being investigated. Pallais, et al. The court finds, therefore, that the government complied with the statute and case law in minimizing the intercepted conversations under the circumstances of this case. Plescia appears to argue that, during the course of the Title III surveillance, the government intercepted conversations regarding illegal gambling activities and that, because the government did not amend its Title III application to include Title III interception of conversations about illegal gambling activities, none of the Title III evidence gathered included that regarding the defendants' narcotics activities can be used. See Defendant Plescia motion and p. However, Plescia's argument lacks merit because during the course of the Title III surveillance in this case, the government intercepted many narcotics related conversation which interception was clearly authorized by the Title III orders. The government also intercepted some conversations that may now be viewed as evidence of 'gambling activity' as opposed to necessarily narcotics trafficking activity. The court finds that the government did not violate any constitutional or statutory law in overhearing and recording these challenged conversations which may have been about gambling. The government is correct in stating that 18 U. The Seventh Circuit has recognized, under circumstances similar to those present here, that '\[g\]overnment agents Williams, F. Quintana, F. Furthermore, the government recognizes and acknowledges that to the extent any of the Title III recordings clearly involve gambling-related as opposed to narcotics-related activities, the government would be required under 18 U. See United States v. However, the court is aware that the government does not intend to introduce intercepted conversations about gambling as opposed to narcotics, into evidence at the upcoming trial which involves charges of narcotics distribution and conspiracy. Indeed, it is Plescia's counsel, and not the government, who has indicated he may seek to introduce gambling related evidence. These indications were brought to the court's attention by the filing of pretrial motions and a conference relating to an in camera submission by the prosecutors. Defendants next claim that the Court erred in failing to order termination of Interceptions after the filing of the First Status report and erred in allowing said interceptions to continue after the filing of each successive report failed to set forth any facts regarding attainment of the desired objective. In response, the government says it filed status reports with Chief Judge Grady showing the progress made toward achievement of the authorized objective and the need for continued interception, that evidence of narcotics related activities was being gathered from the interceptions, and that continued interception was needed. This court has reviewed the reports submitted to Judge Grady by the government and finds that the procedure followed here complied with the law. Van Horn, F. In this case, obviously, there was progress as shown in the reports, and thus no need for the court to terminate the interceptions. That first period of Title III surveillance was authorized by a court order entered on November 7, The surveillance began on November 7, and ended on December 7, The defendants' motions seek to suppress the Title III tape recordings made during this period on the ground that the tapes were not sealed at the time required by 18 U. The court denies these motions to suppress for two reasons. See 18 U. This requires that defendant seeking suppression be a party to the conversation the government seeks to use at trial or that the conversation took place on his premises. While defendants Dena Plescia and Anthony Grossi were parties to some of the Title III interceptions they seek to suppress, they were not parties to all of them and thus each one lacks standing as to many of the recordings they now challenge. The court has generously construed the defendants' motion to allow discussion on the issues raised. Additionally, the sealing of the tapes on December 21, was in full compliance with the requirements of Section 8 a , which requires that Title III recordings be sealed '\[i\]mmediately upon the expiration of the \[court\] order \[authorizing the electronic surveillance\] or extensions thereof ' emphasis added. In this case, an extension order was entered on December 27, authorizing Title III surveillance of the same Plescia mobile telephone for an additional thirty days ending January 26, Therefore, the recordings from the first period of Title III surveillance need not have been filed until the conclusion of the Title III surveillance authorized by the order of extension. The defendants' motions also assert that the tapes from the first wiretap were not timely sealed in compliance with 18 U. Rios, U. Cases interpreting 18 U. Vazquez, F. Scafidi, F. Fury, F. Gigante, F. Where the Title III surveillance is of the same premises, involves substantially the same persons, and is part of the same investigation, a second Title III surveillance order issued after the expiration of the first order is an 'extension' of the first order for purposes of 28 U. The Court stated:. The Second Circuit's most recent case involving the meaning of an 'extension' for purposes of 18 U. Rios, F. In Rios, the Second Circuit again indicated in keeping with its prior precedent that where a subsequent Title III order involved the same premises, same telephone, same crimes and substantially the same persons it would be considered an extension of an earlier order even though there was a gap in time between the termination of the earlier order and the entry of the subsequent order as long as the government satisfactorily explains the time gap. The court here finds that Judge Grady's December 27, order was an extension of the electronic surveillance he ordered on November 7, , and thus that the recordings made during the surveillance conducted between November 7 and December 7, did not have to be presented for sealing until January 26, , the date the December 27, surveillance order expired. Clearly, the November 7, and the December 27, orders involved the same telephone, the same persons, the same crimes, and the same investigation. Also, the twenty day gap between the expiration of the November 7, order on December 7, and the entry of the December 27, order is satisfactorily explained by the fact that the twenty days were needed to prepare the new application and affidavit and to obtain approval from the United States Attorney in Chicago and the authorities at the Department of Justice in Washington, D. Case law supports the government's position that the December 27, order was an extension of the November 7, order, and that all the Title III recordings obtained pursuant to these orders need not have been presented for sealing until January 26, when the December 27, order terminated. The government did seal the recording from the first Title III surveillance timely when it sealed them on December 21, Defendants further argue that under the Supreme Court's recent decision in United States v. However, even if the tapes in this case were not timely sealed in compliance with 18 U. In Rios, the Supreme Court stated that, absent such a 'satisfactory explanation,' the tapes must be suppressed pursuant to the provision of 8 U. In this respect, the Supreme Court's April 30, decision in Rios which was issued several months after the Plescia Title III was completed overruled prior well-established Seventh Circuit law, which held that untimely sealed Title III tapes need not be suppressed in the absence of a satisfactory explanation for the delay in sealing as long as the government proved the authenticity and integrity of the tapes. Angelini, F. Lawson, F. The government explanation deemed 'satisfactory' by the Rios Court was that the government attorney supervising the wiretaps had believed that he was required to have tapes sealed at the expiration of a surveillance order only if a meaningful hiatus in the investigation as a whole intervened between the expiration of one order and entry of the next. Absent such a hiatus, the subsequent order was an 'extension' of the first and extended the time for sealing. The Supreme Court, after reviewing Second Circuit precedent prior to Rios, held that whether or not this view of the law had been correct, it has been 'objectively reasonable at the time' and hence constituted good cause for the long delays in sealing. The government's 'explanation' follows:. The court finds further that the good faith of the Assistant United States Attorneys' belief that they would be able to seal all the tapes at the end of the extension, and the lack of any other motive on their part for delay, is amply shown by their other actions before Judge Grady. The Assistants reasonably believed that a second Title III order for the Plescia mobile telephone would be an extension of the first even though there would be a time gap between the termination of the first order and the entry of the second as long as the time gap was a period of time reasonably necessary to obtain a new order. The Assistants notified Chief Judge Grady at the conclusion of their first wiretap of their intention to work expeditiously on drafting and obtaining approval of an application and affidavit for an extension order and to seek such an extension order shortly. The Assistants then worked expeditiously on drafting and obtaining approval of the necessary paperwork. Once it became apparent on December 21, that it would take more than two weeks to draft the new affidavit and obtain office and Department of Justice approval, the Assistants sought out of an abundance of caution to have the tapes obtained under the first order sealed that very day. They did this even though they reasonably believed that further delay caused by necessary work on an approval of the request for the second order would not destroy the character of the second order as an 'extension. In Rios, the government's affidavit in support of a subsequent Title III order 'did not differ significantly from the earlier ones' and indeed 'was textually similar and in fact shorter. Here in contrast, during the period of time between the expiration of the first order and sealing the Plescia tapes, the government's attorneys made significant changes in the prior affidavit, based on the time-consuming review of material obtained pursuant to the first order, and then had to await office and Department of Justice approval of the entirely new affidavit. Accordingly, the motion of defendants to suppress the Title III court-authorized electronic surveillance is denied. The tapes from the second wiretap were sealed on January 26, the day that wiretap ended and defendants have not attacked the sealing of those tapes. Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes. Plescia United States v. Plescia, F. United States District Court, N. Illinois, E. January 1, Joseph Lopez, Chicago, Ill. Michael C. Goode, Chicago, Ill. Kevin Bolger, Chicago, Ill. Joseph DiNatale, Chicago, Ill. Section 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 and provides, in pertinent part, as follows: Upon such application the judge may enter an ex parte order During the last couple of days of that electronic surveillance, Assistant United States Attorneys Alexander Vesselinovitch and Helene Greenwald, who were in charge of the investigation, decided to apply for an extension of the Title III surveillance order so that the Plescia mobile telephone could be monitored for an additional thirty day period. Such an application required the drafting of a new affidavit based on information gathered during the initial Title III surveillance in order to establish probable cause for the extension. Additionally, standard Department of Justice 'DOJ' and United States Attorney's Office requirements mandated that before an application for extension could be submitted to the court, the application for extension and the new affidavit had to be submitted for approval to the United States Attorney and supervisory authorities in this district as well as to the supervisory authorities in DOJ in Washington, D. The Assistant United States Attorneys initially anticipated that the whole process of drafting the new application and affidavit and obtaining approval would take about one week. Such approval is expected to be received in about one week. At that time, an application for further monitoring will be submitted. The government's explanation continues: Title 18, United States Code, Section 8 a provides that '\[i\]mmediately upon the expiration of the \[court\] order \[authorizing electronic surveillance\], or extensions thereof, At the time of the Title III surveillance in this case, the Government reasonably believed that: 1 the second order that it planned to seek for a second period of Title III surveillance of the Plescia mobile telephone would be an 'extension' of the first Title III order for purposes of section 8 a ; and ii that the Title III recordings from the first surveillance period would not have to be sealed until the expiration of the second period of surveillance conducted pursuant to the extension order. The government believed the second order would be an 'extension' of the first even though there would be a time gap between the end of the first surveillance period and the entry of the subsequent Title III order as long as the time gap was a reasonable period of time necessary for the drafting of and obtaining the approval for the new Title III application and affidavit. A new affidavit had to be created from the information gathered during the first wiretap. Approximately conversations were intercepted and recorded during the first wiretap. This surveillance produced additional evidence regarding the defendants' drug activities. While these taped conversations and reports of visual surveillance had been reviewed during the course of the wiretap and relevant ones were reported to the Chief Judge in the required ten day reports, the preparation of the new application and affidavit required additional review of the tapes and reports to ensure that the affidavit and application were as complete as possible. The new affidavit comprised over twenty pages and contained new information substantially different from that in the first affidavit. The government's explanation concludes: On December 21, , DOJ authorities had not yet completed their review of the new application and affidavit. Because the Assistant United States Attorneys on the case did not know how much longer it would be before the extension papers would be approved for court submission and because they wanted to ensure full compliance with the sealing requirements of Section 8 a , the Assistant United States Attorneys in an abundance of caution had the recordings from the first surveillance sealed on December 21, About one week later on December 26, DOJ approval of the application for extension was received and the application for an extension order and the new affidavit in support of the extension were submitted on December 27, to Chief Judge Grady, who that same day entered an order of extension authorizing the electronic surveillance of the same Plescia mobile telephone for an additional thirty days. Surveillance pursuant to this order of extension began on December 27, and terminated on January 26, Because the government did not plan to seek any further orders of extension, the Title III recordings made during the period authorized by the extension order were presented to and sealed by Chief Judge Grady on January 26, , the same day the interception terminated. This court finds, as did Judge Grady, that the government's explanation is satisfactory. Enter Your Email. Justia Legal Resources. Find a Lawyer. Law Schools. US Federal Law. US State Law. Other Databases. Marketing Solutions.

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