United States District Court,
S.D. New York.
UNITED STATES of America,
v.
John TOMERO, et al., Defendants.
No. S2 06 Crim. 0008(LAK).
Nov. 27, 2006.

MEMORANDUM OPINION

LEWIS A. KAPLAN, District Judge.


Thirty-four defendants are charged with various criminal acts
associated with the operations of the Genovese organized crime
family. Ten move to suppress conversations intercepted by listening
devices, colloquially known as "roving bugs," installed in cellular
telephones.


Background


A. The Investigation


1. The Traditional Intercepts

The indictment stems from a three-year investigation into the criminal
activity of members and associates of the Genovese organized crime
family. The investigation initially focused on the crew of John
Ardito, a high-ranking member of the family. The FBI learned from
cooperating witnesses that Ardito's crew met regularly at a restaurant
called Brunello Trattoria in New Rochelle, New York, to conduct family
business. In December 2002, the Honorable Barbara S. Jones of this
Court authorized the interception of oral communications of Ardito and
other subjects at this location.

The intercepted conversations revealed that Ardito and his crew met at
three additional restaurants, in part because they were suspicious of
law enforcement surveillance. The government applied for, and Judge
Jones authorized, the interception of conversations at these three
restaurants as well as continued interception at Brunello
Trattoria. In July 2003, however, Ardito's crew found the listening
devices in three of the restaurants and became even more wary of
surveillance whenever they returned to their usual meeting places.


2. The Roving Intercepts

a. Ardito's Cellular Telephone

Based on physical surveillance and the conversations previously
intercepted, the FBI learned that Ardito's crew no longer conducted
meetings exclusively at the four restaurants, but met also in twelve
additional restaurants, automobiles, Ardito's home, an auto store, an
insurance office, a jewelry store, a doctor's office, a boat, and
public streets.

The government applied for a "roving bug," that is, the interception
of Ardito's conversations at locations that were "not practical" to
specify, as authorized by 18 U.S.C. § 2518(11)(a). Judge Jones
granted the application, authorizing continued interception at the
four restaurants and the installation of a listening device in
Ardito's cellular telephone. The device functioned whether the phone
was powered on or off, intercepting conversations within its range
wherever it happened to be.

b. Peluso's Cellular Telephone

By February 2004, the government had learned that Peter Peluso, an
attorney and close associate of Ardito, was relaying messages to and
from high-ranking family members who were wary of government listening
devices and who used Peluso as a messenger to avoid meeting together
directly. In a renewal application dated February 6, 2004, the
government sought, and Judge Jones in due course granted, authority to
install a roving bug in Peluso's cellular telephone. This order was
renewed several times throughout 2004, as the government continued to
identify locations where Peluso and Ardito discussed family matters
and learned that the subjects were growing increasingly cautious of
government surveillance.

n January 2005, Peluso agreed to cooperate with the government's
investigation. At that point the government removed the listening
device in his cellular telephone and Peluso began recording
conversations with family members consensually by wearing a
microphone. On July 7, 2005, Peluso pleaded guilty, pursuant to a
cooperation agreement with the government, to a four-count
information, charging him with, among other things, engaging in a
pattern of racketeering activity.

[...remainder snipped...]