United States v. Feola

MEMORANDUM AND ORDER

Defendants in this case stand charged, by first superseding indictment filed on March 27, 1986, with having operated a cocaine and marijuana trafficking ring, centered in Westchester County and Manhattan, which distributed narcotics during 1985. Defendant Luz Arteago has heretofore been granted a severance from her co-defendants by order of this Court on May 13,1986, and nothing contained herein applies to her. Count One of the Indictment charges nineteen defendants — Gary Feola, Edmund Rosner, Noemi Fernandez, Rubiel Marin, Jaime Arango, John Farese, Ira Neuringer, Louis Tarantelli, John Cercena, Stephen Gallo, Arthur Torsone, Daniel Wall, Solomon Gumpricht, George Acevedo, Robert Marrama, Doug MacLennan, Richard Sullivan, Mark Dratch, and Arthur McGuire — with conspiracy to distribute cocaine between January 1, 1985 and November 26, 1985, in violation of 21 U.S.C. § 846 (1982). Count Two charges Feola, Rosner, Torsone, and Dratch with conspiracy to distribute marijuana and possess marijuana with intent to distribute during the same period, again in violation of § 846. Count Three charges Fernandez with possession with intent to distribute cocaine, in violation of 21 U.S.C. §§ 821 and 841 on November 26, 1985. Counts Four, Five, and Six charge Gallo with the posses *1080 sion of three separate firearms as a convicted felon, in violation of 18 U.S.C.App. I, § 1202 (1982). Counts Seven through Seventeen seek the forfeiture of several items of real and personal property, including interests in apartments, various automobiles, and cash, all pursuant to 21 U.S.C. § 843 (1982).

These defendants have made numerous pre-trial motions, discussed below, which became fully submitted to the Court for decision on December 23, 1986 with the docketing of a letter to this Court by counsel for Defendant Rosner, seeking its review of a composite tape recording and transcripts for certain wiretap conversations, which materials were prepared in conjunction with the Government and submitted by the Government on December 15, after being requested by Defendant Rosner by letter docketed December 3, 1986. The Court has been receiving submissions continually from the parties since the original motions were filed in June and July of 1986, including the Government’s Reply Brief filed on October 14, 1986 and the wiretap logs received from the Government on November 18, 1986. Also received from the Government, in late November and early December of 1986, were sealing orders in connection with the intercepted conversations discussed below, and a letter of certification as to statements made by certain defendants. All of the above materials were, of course, necessary to the Court’s determination of the motions herein.

The within motions fall primarily into four broad categories, and this decision seeks, so far as is practicable, to dispose of the motions by category:

1. iSuppression Motions. The evidence in this case derives largely from eleven eavesdropping orders issued by two justices of the New York Supreme Court between August 14 and November 8, 1985. Those orders will henceforth be referred to as Orders A-K. All defendants contest the propriety of these orders, on as many as fifteen separate grounds, and seek suppression of their fruits.

Defendants were arrested on November 26, 1985. As detailed below, numerous items including drugs and drug paraphernalia were seized at the time. The defendants from whom they were seized seek to suppress this physical evidence.

Three defendants, Tarantelli, Gumpricht, and Cercena, have moved for a pre-trial hearing concerning the voluntariness of their statements.

2. Severance Motions. Acevedo, Dratch, Farese, Fernandez, Gallo, MacLennan, Marrama, Neuringer, Sullivan, and Tarantelli move to sever their trials or specific counts in the indictment. In particular, defendants move to sever the weapons counts against Stephen Gallo, and Gallo himself seeks such a severance. Others move to sever the two conspiracy counts, Counts One and Two, which cover different illicit merchandise, from each other.

3. Evidentiary Motions, Including Discovery. Defendants including Cercena, MacLennan, Sullivan, Marrama, Dratch, Acevedo, Marin, and Tarantelli have moved for rulings in limine with respect to specific evidentiary issues, such as admissibility of evidence of prior convictions. Combinations of defendants seek discovery on a broad front.

4. Miscellaneous Motions. Other significant motions are discussed below as a miscellany.

FACTS

This necessarily abbreviated statement of facts, assumed to be true for purposes of this decision only, is drawn primarily from the various affidavits of Detective Robert Magaletti in support of Orders A-K. The account of events after Magaletti’s last affidavit is drawn from the Government’s brief.

The 1985 investigation that led to this indictment was not the principal defendants’ first encounter with our criminal justice system. A 1978 joint investigation by the Drug Enforcement Administration and the New York City Police Department led to John Farese’s conviction, and imprison *1081 ment, for selling cocaine. Farese implicated Gary Feola as a “partner” who could acquire cocaine and heroin. Feola was arrested in the course of a 1981 investigation of John Cercena, a search of whose home yielded cocaine and marijuana. Feola was convicted of conspiracy in the fourth degree in connection with an attempted sale of three kilograms of cocaine in 1982, and imprisoned.

ORDER A

The initial steps of the 1985 investigation, from Detective Magaletti’s account, involved pen register surveillance, and information gained from named and unnamed confidential informants. Pen register surveillance of Farese’s telephone in April-May and June-August revealed that thirty percent of outgoing calls were to telephones listed to individuals with known criminal records, or persons who were believed to be dealing in narcotics, including 64 calls to Cercena’s phone and 47 to Feola’s.

The Named Informants.

Detective Magaletti refers to two named informants in his first application. In a September 1982 prison interrogation, Dominic Carbone, a target of the 1981 Cercena investigation, implicated Feola, Farese, Cercena, and others in a drug trafficking ring for which Carbone said that he acted as “enforcer.” Vincent James Tarantelli, brother of defendant Louis Tarantelli, was arrested for selling cocaine in February 1984: soon after his arrest, he told Detective Magaletti that he had received the cocaine from one John Colletti, who had told him that he had received it from Feola.

The Confidential Informants

Possibly the single most important component of Magaletti’s first application is the information he received from his so-called Confidential Informant 1, or “GI # 1.” Cl # 1 claimed to have lived in Farese’s house “for several years between 1977 and 1984” and to have gained personal knowledge of the workings of the organization by working as a “mule,” a courier of drugs between Florida and Westchester County, New York. According to Cl # 1, Farese, Feola, or Cercena would negotiate a cocaine purchase from New York, then travel to Florida to pay the supplier, and return, leaving it to Cl # 1 to transport the cocaine back to Westchester, where it would be distributed to trusted local dealers. Neither Feola, Farese, nor Cercena ever personally handled the cocaine in transit. Detective Magaletti claims that Cl # l’s account is corroborated by the transaction for which Feola was arrested in 1981, for which Cercena acted as “mule.” He goes on to cite two other transactions involving Cl # 1. In March 1984 investigators took Cl # 1 up on his claim that he could succeed in a controlled buy of cocaine from Farese. Cl # 1 returned with marijuana, claiming that if he had bought cocaine Farese would have been arrested immediately by the New York police, would have realized that Cl # 1 had set him up, and would have had Cl # 1 killed. Finally, in August 1985 Cl # 1 informed authorities that he had been ordered to go to Fort Lauderdale for one week in the usual manner for making a cocaine pick-up. A check of his airplane and hotel reservations confirmed his story at least in part. On this basis, Detective Magaletti represented that Cl # 1 was a reliable informant.

Cl #2 told the investigators of a 1984 conversation in which John Farese offered him a job as an “enforcer,” or debt collector, showing him a list of names, from which he remembered one “Nancy.” Detective Magaletti believed this person to be Nancy Mazza, who was believed to have lived at Farese’s home and owed him $9,000 for cocaine. Although Ms. Mazza is not a defendant in this case, Detective Magaletti believed and represented that the conversation, along with pen register records of 64 calls between the Farese and Mazza telephones in 1985, offers reason to believe that Farese was dealing in cocaine with Mazza.

Cl # 3, finally, claimed to have been approached by Ernest Iarussi, an associate of Farese, to help Farese distribute a shipment of 600 pounds of marijuana received in June 1985. Cl # 3 also reported having *1082 seen two kilograms of cocaine in Farese’s “boathouse” during 1985.

All these facts presented by Detective Magaletti persuaded Justice Daehenhausen that there was probable cause to justify tapping John Farese’s telephone. The order (Order A) issued on August 14, 1985. One of the conversations intercepted under Order A actually occurred in Farese’s apartment while the phone was off the hook because someone was trying to call defendant McGuire. In this August 25th conversation, the unidentified caller (whom Detective Magaletti later tentatively identified as Daniel Wall) discussed the financial implications of Feola’s imminent return from Europe. Detective Magaletti believed that when Feola called Farese from Europe on July 19th, Farese asked Feola to supply him with drugs (complaining that he was “dry”) and that Feola agreed to do so, on Farese’s assurance that he was “covered” (that is, in Magaletti’s opinion, that Farese could come up with the money). Against a background of calls in which Farese had been trying to collect money from various individuals, Detective Magaletti took the August 25th conversation to show that the reason Farese was trying to collect money was to have it available to pay for the drugs he had arranged to get from Feola upon Feola’s return.

ORDER B

Order B, issued on August 26, 1985, amended Order A nunc pro tunc to authorize the interception of a communication occurring within the premises of John Farese’s apartment, which was overheard and intercepted while the telephone had been taken off the hook to make an outgoing call. It is discussed in greater detail below.

ORDER C

Order C, on Feola’s telephone, was issued on September 5th. Feola had just returned from Europe from whence he called Farese on August 19th and September 2nd. The latter conversation, lasting twenty minutes, involved discussions of business associates, including “Danny,” and at least two coded references to drugs for personal consumption (“babana,” or heroin, and “wacky weed”). Magaletti also reports that Cl # 1 indeed went to Florida {supra, p. 1081), but returned empty-handed because Feola’s agents were unable to complete the transaction. Cl # 1 also said that Feola had ordered him to go to Florida in mid-September and to call him for further instructions on September 5th.

ORDER D

This Order, issued on September 12th, was a thirty-day extension of the tap on Farese’s phone. By this time, the investigative net had been cast wide. Conversations between Farese and non-defendants Kevin Lubic and Glenn Wagner, whom Detective Magaletti alleges were distributors for Farese, first implicated Mark Dratch. Dratch was secretive in his telephone discourse, expressing anger at Lubic’s attempts to call him directly, and asking Farese to return a call without telling him the area code. Conversations between Farese and Wagner contain allegedly coded references to “the one thing you wanted to sell” or “presents.” Detective Magaletti was able to identify the person who tried to call Arthur McGuire on August 25th as Daniel Wall by comparing that conversation to a known interception of Wall. Several conversations were intercepted in which Farese ordered Louis Tarantelli to come to his house immediately with “greenies,” which Detective Magaletti interprets, reasonably, to mean money. Finally, physical surveillance disclosed meetings between Farese, Feola, and Wall, between Feola, Wall, Drateh, and McGuire, and between Feola and, among others, Cercena and Gumpricht.

ORDER E

Order E issued on September 24th for a wiretap on Arthur McGuire’s telephone. McGuire, a nephew of Feola, had shown up early, with his telephone the recipient of seven calls in the pen register surveillance of John Farese’s telephone. Subsequent pen register surveillance of McGuire’s phone revealed 69 calls to Daniel Wall between June 1985 and September 23, 1985, and a total of 168 calls to the Boston de *1083 fendant(s) “Bo” or “Doug” (see infra), as well as 23 calls to Ira Neuringer — who, according to an informant, had been selling him small quantities of cocaine since February on a regular basis. McGuire had also been intercepted over Feola’s phone.

On September 9th, Feola angrily accused McGuire of not returning calls, not paying money he owed, (“fifteen,” which Detective Magaletti interprets to mean $15,000), and not doing what he was supposed to. Feola also demanded that McGuire get in touch with his “fat friend,” following up this call with a visit, within the hour, accompanied by Wall.

That afternoon, McGuire made numerous calls to Massachusetts and apparently tried to fly there: that evening he called Feola to say that he couldn’t make the trip.

By September 11th he had made the trip, arriving at Feola’s in time to be present during a call from “Doug” in Boston, in which Feola said he wanted to settle matters about the “car” or “corvette,” but refused to go into detail on his private phone — furtive behavior that leads Detective Magaletti to infer the “car” and “corvette” are code words for cocaine here. That afternoon, one “Bo,” whom Detective Magaletti identifies with “Doug,” called McGuire at Feola’s to say he was coming to New York [from Boston] on a 5:30 flight. When Bo did not arrive promptly, McGuire called several Massachusetts numbers, remarking to one that he was in a “heck of a lot of trouble.” Detective Magaletti concluded from all this that Feola had fronted cocaine to Bo through McGuire and that when Bo failed to pay, Feola put pressure on McGuire.

Meanwhile, electronic surveillance of the other alleged conspirators yielded further results. On his return to New York, Feola discussed money owed him by one “Steve” and arranged a meeting between one “Vinny” and “Yvonne” in which Yinny asked for something other than money. The next day, Wall talked to an unidentified man about selling 15 or 20 “tickets” (quantities of cocaine, in Detective Magaletti’s opinion): the following day Feola asked Wall to bring over the “green” so he could “check it out.” Also on September 9th, Gumpricht said that he was on his way to New York to visit Feola and discussed money Gumpricht owed to an “Uncle Bill.” Gumpricht arrived in New York around 11:45 that evening.

Physical surveillance that day revealed meetings between Feola, Wall, Dratch, Ralph Feola, Sr., and Farese. These meetings were followed by an angry telephone conversation on September 11th between Wall and Feola involving a dispute about money with Feola Sr. shouting in the background. Physical surveillance revealed a visit to Feola’s apartment house on September 9th by two unidentified men driving a car registered to Stephen Gallo’s brother: one of the men dropped off a small brown package, which Magaletti believed to be money. Finally, Edmund Rosner called Feola to say that he had to meet “Uncle” the next day: the next evening Rosner called Wall and asked for “two.”

On September 12,1985, Gumpricht called Feola to tell him that unidentified “Robert” had been arrested in Miami. Feola called Rosner several times; they and Dratch agreed to meet at Feola’s at 4 P.M. McGuire, Gumpricht, and one “William” were also said to be on their way to this meeting. McGuire and a male Hispanic recognized that they were being “tailed”: they called Feola and insisted that he call them back from a public phone.

On September 12, 1985, after this week of frenetic telephone calls and meetings, Feola returned to Europe.

ORDER F

Order F, issued on October 3, 1985, amended and extended the wiretap on Feola’s phone and authorized the use of bugging devices in Feola’s apartment. Because of technical difficulties, the bugging devices were never installed. The amendment added Wall, Gumpricht, George “LNU,” Rosner, Dratch, McGuire and “Bo” a/k/a “Doug” as interceptible parties. On October 3rd, Feola had not yet returned from Europe. Detective Magaletti’s affida *1084 vit recapitulates the events described in his September 12 affidavit, concluding that there is probable cause to believe that Feola will, upon his return, continue to use his telephone and apartment to carry on illegal activities. Only further electronic surveillance, Detective Magaletti affirms, can determine the precise scope of those activities and the meaning of mysterious key matters such as the identity of “uncle” and the identity of the arrested “Robert.”

ORDER G

Order G, issued on October 4, 1985, renewed the wiretap on Farese’s telephone, added Ralph Feola Sr., Anthony Napolisso and Joseph Cordano as interceptible parties, and authorized internal electronic surveillance of Farese’s apartment. The basis for adding these parties is discussed below.

After the September 11th series of meetings which Detective Magaletti interpreted as involving disputes over money, and which left Ralph Feola Sr. unsatisfied, Feola Sr. and Farese spoke several times. On September 12, Feola Sr. called to advise Farese to be careful in light of recent drug arrests, which he referred to in code as “AIDS.” On October 1st, Farese called Feola Sr., expressing serious fear that he would be arrested while “sitting on a prince's estate” with “green walls.” Feola Sr. advised him to bring over his “green clothes,” which Detective Magaletti interpreted to mean a substantial sum of money, which Farese did not wish to possess in the event of his arrest.

Napolisso, an associate of Farese, served as a so-called “house sitter” for him in his apartment in Mahopac, while Farese took a short vacation in late September. On September 22,1985, Napolisso took a call from one “Sal” who expressed intense, concern about the activities of a “rat,” “somebody with a big mouth” who was “very very close” to Napolisso and Farese. Detective Magaletti concluded, and advised the Court, that Napolisso is a “trusted associate” of Farese, whose role needs further exploration.

A series of intercepted conversations indicate that Cordano was involved in obtaining genuine Quaaludes for Farese, something that can only be done overseas now that methaqualone is no longer manufactured in the United States.

Detective Magaletti also' noted that Farese remained in contact with Tarantelli, Dratch, and Feola, and recited incidents at Farese’s apartment that make it probable that he would use the apartment for illegal activity.

ORDER H

Order H, issued October 31,1985, renews the wiretap authorization for Feola and adds Neuringer and “Allen a/k/a/ Art [Torsone]” as interceptible parties. Detective Magaletti’s affidavit in support of Order H recites the results of surveillance of the defendants between October 6th and October 23rd in great detail. This decision next recounts the most significant results.

On October 6, 1985, Feola returned to New York from Europe. That evening, among other things, he had what Magaletti calls a guarded conversation with Rosner about the arrest of “Robert” in Miami in September, in which Rosner refers to “the guy seeing your uncle tomorrow morning.” The next morning, at 7:30 A.M., Feola called Rosner, who said that he was just about to call “Uncle.” Feola expressed a desire to meet “Uncle,” whom Rosner said was going to see “the tall guy” upstate. (Detective Magaletti interprets this as a reference to Dratch, who is six feet, four inches tall.) That afternoon Rosner and Feola lunched and were later observed meeting with McGuire and one Joseph Kasak. Later Wall called Feola from Massachusetts. Feola said that he was sending McGuire to “drive the car” to Massachusetts, that Wall should make sure McGuire “drove it back” and took care of the problem with “Bo,” and that he, Feola, had to see his “uncle.”

On October 10th, John Cercena called one “Chris,” who asked him whether he had any of the “cookies” they had gotten the previous night. The conversation is significant because Cercena in his motion papers admits Detective Magaletti’s con *1085 tention that “cookies” is code for “Quaaludes.” This argument is made by Cercena in the course of claiming that his possession of Quaaludes was not a serious offense because they were for his personal consumption. Affirmation of D. Porco, Esq. at 4 n. *.

On October 11th, among other things, Feola had a conversation with one “Jimmy” at Ira Neuringer’s, which Detective Magaletti interprets as involving a shipment of marijuana.

The next significant activity occurred on October 14th. That day, “Art” called Feola, apparently from a pay phone, and engaged in a lengthy discussion of the choice among three or four “golf courses” on which to schedule a “tournament” with some “very professional” golfers, the first indication in this record that Feola has any involvement in sports organizational activities. Later that morning Feola spoke to Farese, who said he had “15” for “the shirt” — a reference, according to Detective Magaletti, to $15,000 for a pound of cocaine. Later that evening Feola solicited an “oriental job” (“nothing serious, just for myself,” which Detective Magaletti takes to mean marijuana or hashish for personal consumption) from “Art” and a “doob” (a common code word for marijuana, according to Magaletti) from Neuringer.

The next evening, October 15th, Rosner spoke to “Allen,” that is, Arthur Torsone, from Feola’s, about how he had waited long enough for someone, presumably Feola, to show up, and was going home. This is the “shapes/tapes” conversation Rosner stresses so heavily in his brief to cast doubt on the Government’s case, and is discussed in some detail below.

The morning of October 16th saw a flurry of activity, with meetings arranged between Cercena and Wall at 288 Lexington Avenue, and between Rosner, Allen, Feola, and an unidentified man at a Japanese restaurant in the vicinity of 73rd Street and Columbus Avenue. In arranging the meeting, Allen asked Feola to bring “a sample of that wallpaper,” which Detective Magaletti interpreted to mean money. Rosner’s charge that the prosecutor’s failure to inform the grand jury that physical surveillance in the vicinity of the restaurant revealed no money is discussed below.

The following evening, Farese called Feola, apparently from a pay telephone. He was angry, insisting that Feola “cancel the shirts” and give his money back. A telephone call and meeting between Farese and Wall later that evening apparently patched up what Detective Magaletti interprets as a near botch of Farese’s $15,000 cocaine deal.

Most of the remaining conversations in the Order H affidavit are cumulative for purposes of this opinion. Thus, for example, on October 18th Rosner inquires of Feola about the mysterious “Uncle”. So too, on October 20th Rosner calls Feola to tell him that a friend wants to see his “property,” which “Bo” characterized as “swampland” on October 23rd. Detective Magaletti took this to be Bo’s disparagement of the “property,” that is, marijuana, and the failure of physical surveillance to reveal marijuana at Rosner’s lunch with Feola the next day draws another charge of prosecutorial misconduct. Physical surveillance did, however, reveal a significant remark. The third member and organizer of the lunch party, one “Bobby,” asked Feola “Why not do ‘it’ by car?,” and Feola responded that he didn’t want to, mentioning “the guy” in Florida and that “the other time that’s what happened there too.” Though Detective Magaletti does not draw the conclusion, one can interpret this as an allusion to the Florida drug run that resulted in Feola’s 1981 arrest, permitting an inference that Feola is discussing another drug run.

ORDERS I-K

Orders I and J issued on November 4, 1985. Order I authorized wiretapping and internal surveillance on the telephone and apartment of one “R. Smith” at 288 Lexington Avenue, Apartment 11F, New York City. Detective Magaletti early speculated that “R. Smith” was in fact Daniel Wall, and considerable wiretap evidence, recapitulated in Magaletti’s affidavit in support *1086 of Order I, indicated that the apartment on Lexington Avenue was a focal point for dealings among the defendants. Order J authorized the wiretap on Rosner’s phone. Detective Magaletti’s affidavit introduces no new conversations involving Rosner after October 24th, instead recapitulating the significant involvement of Rosner in intercepted conversations described in the Order H affidavit. (Indeed, Magaletti says in Order H that one reason he has submitted the affidavit is in anticipation of an application of a tap on Rosner’s phone.) Finally, Order K, issued on November 8, 1985, extended the Farese wiretap and electronic surveillance authorization, reporting no conversations involving new parties.

Events After the Orders

No eavesdropping orders were applied for after November 5th, but events proceeded. The account of the defendants’ November activities is drawn from complaints sworn by Detective Magaletti against Feola and eight others on November 21st, and against Dratch and Fernandez on November 22nd.

On November 5th, Feola had two significant contacts with other defendants. He called Steven Gallo to collect money from him. Gallo did not have the money because he had “four given out” and “eleven at his mother’s,” in Detective Magaletti’s opinion referring to quantities of cocaine he had sold or failed to sell. Feola threatened to “make a scene” when Gallo offered to give back the eleven, if Gallo continued to talk on “this” phone about such matters. Later that evening Acevedo called from Florida to say he had spoken to his “sister” — one of the more common code words for cocaine. Feola said that she was getting too expensive and had to “come around in a lot of [other] areas” — complaining, Magaletti says, about both the quality and price of the cocaine.

On November 6th, Fernandez called Wall at Feola’s, saying that she had “spent” only “thirty-five” of the “forty-eight’: on November 8th she told Feola that she had “five” left. Magaletti believed that these referred to quantities of cocaine she had sold: Feola expressed no interest in the remaining “five.” That afternoon, Rosner called: Feola told him that he, Feola, had to see “Uncle” now. About fifteen minutes later, Acevedo called from Florida to report that everything was negotiable as to his sister: Feola told him to come up right away. That evening, Feola, Dratch, and an unidentified man met at P.J. Clarke’s Restaurant in Manhattan. Feola later spoke to Neuringer on the street in front of the restaurant.

Acevedo had returned to New York by November 11th, when Feola called him at 288 Lexington Avenue to learn that he had spoken to his “sister.” That evening, Gallo called Feola, who expressed anger about Gallo’s “big mouth” the other day. The next morning Fernandez called Feola, asking whether his “friend” had come in (the answer was “No”) and saying she had a friend who wanted to go to a party and bring “two girlfriends”: Magaletti interpreted this to mean that she had sold her last consignment and was looking for another. That evening, Acevedo spoke to “Jimmy,” expressing worry about losing “these people,” that is, as potential customers.

The next day, November 13th, Acevedo arranged a meeting between Feola and Jimmy: a Hispanic-looking man was seen leaving Feola’s building that afternoon. When Fernandez called on November 14th, Feola told her in substance that she was too late.

November 15th was apparently taken up with matters of finance. Dratch called Feola to tell him that he had seen “Uncle” and had gotten Feola’s “three” ($300,000 according to Magaletti); Feola expressed relief that he wouldn’t have to visit “Uncle” himself. Later, Jimmy spoke to Acevedo at Feola’s, apparently negotiating the price at which to offer a quantity of cocaine to Feola.

On the morning of November 18th, Fernandez called Feola again to ask whether his “friends” had arrived and to say she knew a lady who needed a date. Feola invited her to come around and talk. De *1087 tective Magaletti takes this to mean that Feola is ready to discuss a consignment of cocaine from the new shipment arranged by Jimmy and Acevedo. In the early afternoon, Acevedo called Feola to complain that “your numbers weren’t right”: Feola responded that “the phone numbers I gave you were exactly right,” trying to cover up a reference to the money involved in the cocaine deal, according to Magaletti.

On November 19th, Feola and Rosner have what this decision will later discuss as the “six broads” conversation. Rosner then immediately called “Art” (Torsone) to ask when he wanted to start “auditioning” these six “figures.” Art replied that he might read one of their resumes the next Thursday afternoon. Magaletti takes this to mean that the transaction with Jimmy is complete and Feola is ready to sell to Torsone after an “audition,” or sampling, some of the six quantities of cocaine (the “six broads”).

That afternoon Jimmy called Acevedo at 288 Lexington Avenue to say he had had the “girls” ready since Saturday, and to suggest that he come over the next morning.

Finally, that night Wall called Acevedo to ask where were the keys Acevedo had picked up on 45th Street. Feola got on with Acevedo to say that they were under the sweaters. Detective Magaletti detected an attempt to cover up this reference to keys, or kilograms, one of the best-known of all drug code terms.

On November 21st, Rosner called Torsone at about 8:00 A.M. to arrange their meeting. At about 9:30, Torsone called back to say he had to cancel because of “car trouble” unless there was an “emergency.” Rosner advised Feola of the cancellation at about 10:30.

All of the wiretapping operations not otherwise terminated earlier ended on November 26, 1985.

The wiretaps on the Farese, Feola, McGuire, Rosner and Smith telephones, and the surveillances of the defendants conducted therewith over the course of the investigation, suggested to the government investigators that Gary Feola acquired cocaine and other controlled substances and marijuana from several sources, drugs which were then distributed by other members of his organization in Northern Westchester, Putnam and New York Counties, as well as Massachusetts, Long Island, Connecticut, New Jersey and Maryland.

Search Warrants

On November 21, 1985, Justice Dachenhausen of the New York Supreme Court, Westchester County, issued search warrants for fifteen residences, and for the persons of certain of their occupants, in New York, Westchester and Putnam Counties and on November 22, 1985, Judge Harold A. Ackerman, United States District Judge for the District of New Jersey, issued a search warrant for the residence of Noemi Fernandez. The searches, most or all of which were executed on or about November 21, 1985, uncovered drugs and/or drug paraphernalia at every search location, as well as cash, large quantities of narcotics diluents and explicit narcotics records.

Seized from Noemi Fernandez’ apartment at 113 River Road, Apartment C2, Nutley, New Jersey, were nearly two kilograms of high purity cocaine, 48.2 grams of marijuana, $82,730 in United States currency, a considerable collection of expensive narcotics paraphernalia, and an extensive collection of jewelry and furs.

Uncovered from the search of Gary Feola’s apartment at 300 East 54th Street in New York City in this District, were $35,-000 in United States currency, approximately 4.3 grams of cocaine, cocaine diluents, and narcotics paraphernalia. Extensive, explicit drug records containing clear references to narcotics trafficking and detailing narcotics sales by Feola to several of the defendants were also found.

The search of the residence of Steven and Michael Gallo at 1616 4th Street, Brooklyn, revealed large quantities of common diluents for cocaine, a cocaine grinder with 99.6 grams of cocaine, numerous safe deposit box keys, a telephone beeper of the *1088 sort now affected in the narcotics trade, and ammunition. The search of Steven Gallo’s residence at 96 Grandview Drive, Shirley, Long Island, revealed the three firearms mentioned in the indictment, as well as narcotics paraphernalia, including a triple beam balance scale, and marijuana.

The search warrant executed at the residence of Edmund Rosner, Apt. 37L, 80 North Moore Street, in New York City in this District, uncovered $119,002 in United States currency in a bureau drawer, a $20 bill containing 400 mg. of cocaine and a $1 bill containing 90 mg. of cocaine. Cocaine paraphernalia, including a razor blade and a mirror, were also found.

At the time of his arrest at LaGuardia Airport in Queens, on December 5, 1985, Daniel Wall had in his possession $74,920 in United States currency and $1 bill containing 25 grams of cocaine. A search of his apartment at 288 Lexington Avenue, Apartment 11F, in New York City in this District, revealed various drug utensils and paraphernalia, including two triple beam balance scales, a Deering mixer, a strainer, quantities of cocaine diluents and explicit drug records, some of which were in Gary Feola’s handwriting.

At the residence of Ralph Feola, Sr., 4 Stebbins Road, Carmel, Putnam County, New York, $2,395.00 in United States currency, and a notebook in Gary Feola’s handwriting detailing narcotics sales and loansharking activity over a several year period were seized. A safe deposit box key issued by an as yet unidentified bank was found taped under the kitchen sink.

At Ira Neuringer’s residence at 1841 Central Park Avenue, Yonkers, Westchester County, New York, agents retrieved a total of 2,724.89 grams of marijuana, 90.26 grams of cocaine, and .05 grams of heroin. Processing equipment, as well as numerous articles of drug paraphernalia, including a strainer with residue, a cocaine grinder with residue, a razor and mirror for cocaine use, numerous bongs, pipes and cigarette papers for marijuana use, and a spoon with residue were also found.

Seized from John Cercena’s residence at Route 22, Croton Falls, Westchester County, New York, were a quantity of marijuana, a triple beam balance scale, a .22 caliber Remington firearm and a 12 gauge Remington shotgun.

The search of the home of Arthur McGuire on December 5, 1985 at 1155 Warburton Avenue, Yonkers, Westchester County, New York, uncovered marijuana, cocaine, and mannitol, a common diluent. Various cutting tools with cocaine residue and a strainer with such residue were also found.

Items seized from John Farese’s residence at 141 East Lake Blvd., Apartment G2, Mahopac, Putnam County, New York, included 306 grams of marijuana and a page of narcotics records.

Various items were also seized from a search of the residence of Louis Tarantelli, at 3319 Stoney Street, First Floor Apartment, Shrub Oak, Westchester County, New York.

In November 1985, in conjunction with the searches conducted in this case, the Government executed arrest warrants for the principal defendants named in the indictment charging conspiracy to distribute cocaine and marijuana.

I. MOTION TO JOIN ALL MOTIONS

Defendants Cercena, Farese, Neuringer, MacLennan, McGuire, Sullivan, Marrama, Dratch, Wall, Gumpricht, Acevedo, Marin, Feola, Torsone, and Fernandez make motions to join in any and all pretrial and trial motions and requests for relief filed by any co-defendant and to adopt the legal contentions incorporated therein, to the extent such motions are applicable to, and not inconsistent with the additional motions of, each defendant so moving. Defendant Marrama exempts from his request to join, any motions for continuance or waivers of speedy trial.

This motion of the above defendants is hereby granted in the interests of judicial economy and justice, to allow defendants to raise every feasible motion on their behalf, *1089 and there being no opposition to this motion by the Government. The following motions will be considered to be joined by each of these defendants if applicable to that defendant, except where therein noted by the Court.

II. MOTIONS TO SUPPRESS WIRETAPS

Probable Cause

Virtually all defendants move to suppress the fruits of eavesdropping in this case, asserting that the various eavesdropping orders were issued without probable cause. The issue is most hotly contested with respect to the first such order, issued August 14, 1985, for the wiretap on John Farese’s telephone. Because information obtained through the Farese order, as the Government does not dispute, is the principal basis for the showing of probable cause for all the subsequent orders, if it must be suppressed all the others must also be, as fruits of the so-called poisonous tree. Conversely, absent further specific allegations of illegality such as Rosner makes with respect to the tap on his phone, if this Court upholds the Farese order none of the others, or their fruits, are to be suppressed. United States v. Hall, 724 F.2d 1055, 1060 (2d Cir.1983) (Friendly, J.).

The standard for probable cause in a wiretap case is the same as that for a search warrant. United States v. Fury, 554 F.2d 522, 530 (2d Cir.1977), cert. denied, 436 U.S. 931, 98 S.Ct. 2831, 56 L.Ed.2d 776 (1978). Under that standard,

probable cause exists when the facts and circumstances within the affiant’s knowledge, and of which he has reasonably trustworthy information, are sufficient unto themselves to warrant a man of reasonable caution to believe that an offense is being committed, has been committed, or is about to be committed.

United States v. Harvey, 560 F.Supp. 1040, 1051 (S.D.Fla.1982), aff'd sub nom. United States v. Van Horn, 789 F.2d 1492 (11th Cir.1986). Probable cause is a “practical, non-technical conception.” Illinois v. Gates, 462 U.S. 213, 231, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527 (1983) (quoting Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949)). “[Pjrobable cause ... as the very name implies, [deals] with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949). The affidavit must be read as a whole and in light of common sense, taking into account the totality of the circumstances: “In issuing the order the judge must exercise his own judgment, gleaned from a common-sense reading of the entire affidavit, as to whether the facts alleged constitute probable cause.” Harvey, 560 F.Supp. at 1051. See Gates, 462 U.S. at 230-32, 103 S.Ct. at 2328-29.

Defendants maintain that there was no present probable cause for the issuance of Order A for three reasons: (1) the result of pen register surveillance of Farese’s phone is insufficient in itself to create probable cause; (2) information provided by the named informants in Detective Magaletti’s affidavit, Dominic Carbone and Vincent James Tarantelli, was stale; (3) the concededly fresh information provided by Cl # 1 was not buttressed by sufficient assurances of his reliability, credibility, and veracity. In this connection defendants argue that the Aguilar-Spinelli “two-pronged test” for informant reliability, developed by the Supreme Court in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), applies here rather than the “totality of the circumstances” test enunciated in Gates. See generally Rosner Memorandum of Law at 18-60.

Pen Register Surveillance

A pen register is a mechanical device that records telephone numbers of outgoing calls dialed on the line to which it is attached. See Application of United States in the Matter of an Order Autho *1090 rizing the Use of a Pen Register, 538 F.2d 956, 957 (2d Cir.1976), rev’d sub nom. United States v. New York Telephone Co., 434 U.S. 159, 98 S.Ct. 364, 54 L.Ed.2d 376 (1977). It does not monitor the contents of a call. Id. Neither does it identify who is using the phone. Thus, “pen register surveillance shows only that a conversation may have occurred over two [identified] telephones.” Rosner Memorandum of Law 57. In consequence, Rosner contends, pen register surveill