Appeal by the Government from an order of the District Court for the District of Connecticut entered by Judge Ellen Bree Burns quashing a warrant for the arrest of Salvador Basso issued pursuant to 18 U.S.C. § 3653 upon a charge of violation of probation. Reversed and remanded.
Before Lumbard, Mansfield and Mulligan, Circuit Judges.
The Government appeals from an order of the District Court for the District of Connecticut entered by Judge Ellen Bree Burns quashing an arrest warrant for violation of probation issued against appellee Salvador Basso under the authority of 18 U.S.C. § 3653.*fn1 For the reasons stated below we reverse.
Basso was indicted by the grand jury for tax evasion, and on November 22, 1976, he pleaded nolo contendere to one count alleging such evasion in 1969. Thereafter, on January 14, 1977, Judge Zampano of the District of Connecticut sentenced Basso to a three-year term, execution of which was suspended, with Basso placed on two years probation and fined $4,000. Basso subsequently paid the fine in full.
Basso was initially assigned to Probation Officer Joseph Gagne, who informed him of the conditions of his probation. Condition 2 required that "You shall associate only with law-abiding persons. . . ." Officer Gagne explained this condition to Basso in detail, advising him that he could not associate with persons who had a criminal record, were engaged in ongoing criminal activity, or were on probation or parole.
On November 28, 1978, Officer Gagne was transferred to another probation district and Officer David Pond took over supervision of Basso's probation. After examining Basso's file, Officer Pond spoke to State Trooper Robert Blair, an undercover policeman investigating a so-called "Pizza Village" drug conspiracy, who had written a report on January 30, 1978, describing a meeting attended by Basso and several convicted criminals and alleged members of the Pizza Village conspiracy. Trooper Blair stated that Basso had called the meeting, which took place at the Pin-Up Restaurant in Bridgeport, Connecticut, to mediate a dispute over certain gambling interests. One week later, Officer Pond met with Basso, and on the following day, December 13, 1978, he petitioned Judge Zampano for a warrant for Basso's arrest for violating probation.
Officer Pond's petition for an arrest warrant, which was made on Probation Form No. 12, stated in pertinent part:
"Comes now David W. Pond PROBATION OFFICER OF THE COURT presenting an official report upon the conduct and attitude of probationer Salvador Charles Basso. . . .
"RESPECTFULLY PRESENTING PETITION FOR ACTION OF COURT FOR CAUSE AS FOLLOWs:
On October 21, 1977, at the Pin-Up Restaurant/Lounge, Fairfield Avenue, Bridgeport, Connecticut, probationer Basso is alleged to have met with Ilario "Lefty' Regina, William Herman Dorman and Arnold Francis Russo, all of whom have criminal records, all in violation of Condition No. 2 of the Conditions of Probation, which states that, "you shall associate only with law-abiding persons' ...."
"PRAYING THAT THE COURT WILL ORDER a Warrant to issue, said Warrant to serve as a temporary mittimus pending arraignment."
Officer Pond supported Form No. 12 with a two-page memorandum prepared by him, which detailed what Trooper Blair had told him and concluded that Basso was "viewed by law enforcement authorities as a well insulated and low key Mafia figure...."
Judge Zampano did not immediately issue the warrant but suggested that Officer Pond speak with Assistant U. S. Attorney James Pickerstein, who was familiar with the Pizza Village investigation. On December 18 Attorney Pickerstein accompanied the probation officers to Judge Zampano's chambers, and spoke in support of the sufficiency of the allegations. Judge Zampano then signed the warrant.
Basso appeared voluntarily before a magistrate in response to the warrant, and was released on his own recognizance. He then filed several motions, including a motion to dismiss the petition for revocation of probation and to quash the arrest warrant for violating probation on the ground that it was unsupported by probable cause. At a February 22, 1979, hearing before Judge Zampano on the motion to dismiss, Judge Zampano referred to the two-page memorandum supporting Officer Pond's application on Form No. 12. Basso's attorney advised that he had no knowledge of the memorandum, which had not been made part of the court file. Judge Zampano had placed the memorandum under seal because it contained confidential information about undercover activity, stating that it could be unsealed by either court order or consent of the Government (the document remained sealed until March 5, 1979, when the Government consented to unseal it). Judge Zampano ...