Appeals from judgments convicting defendants of violating 21 U.S.C. § 846 after they entered conditional pleas of guilty before the United States District court for the Southern District of New York, Ward, J. Defendants challenge the district court's denial of their motion to suppress evidence obtained by electronic surveillance; defendant Figueroa also challenges the district court's refusal to permit him to withdraw his plea of guilty.
Friendly, Pierce, and Pratt, Circuit Judges.
Defendants appeal from judgments of the United States District Court for the Southern District of New York, Robert J. Ward, Judge, convicting them of violating 21 U.S.C. § 846 upon conditional pleas of guilty. With the government's consent defendants preserved for appeal the wiretap issues of whether Title III of the Omnibus Crime Control and Safe Streets Act of 1968. 18 U.S.C. §§ 2510-20 (1982) (Title III), is constitutional on its face and as applied. In addition, defendant Figueroa contends that the district court abused its discretion in refusing to permit him to withdraw his plea of guilty. Finding no merit in any of these contentions, we affirm.
In April 1983 the government applied to Judge Cale Holder of the United States District Court for the Southern District of Indiana for a wiretap order to intercept wire communications of Louis Inglese "and others as yet unknown", relating to the possession and distribution of narcotics, over two telephones located on separate floors of the alcohol treatment unit (ATU) of the United States Penitentiary -Terre Haute, in Terre Haute, Indiana. These telephones are specially adapted to permit only outgoing collect or credit card calls placed through an operator. Mounted above each telephone is a sign announcing that calls are subject to monitoring.
The application for the wiretap order stated that Inglese and others not yet known were using these two telephones in furtherance of the commission of various narcotics offenses, including conspiracy to distribute, distribution, possession with intent to distribute, and use of the wire facilities to aid the distribution and possession with intent to distribute. According to the application, Inglese, who had been convicted in 1974 of operating a major heroin distribution network center in New York City, United States v. Tramunti, 73 Cr. 1099 (S.D.N.Y 1973) (KTD), aff'd, 513 F.2d 1087 (2d Cir. 1975), cert. denied, 423 U.S. 832, 96 S. Ct. 54, 46 L. Ed. 2d 50 (1975), and is now serving a fifty-six- year sentence at the prison, was directing an extensive narcotics distribution operation from inside the prison, primarily over the ATU telephones. Part of the operation concerned heroin distribution outside of the prison, and part involved narcotics trafficking inside the prison.
Confidential informants had reported that Inglese, assisted by other inmates working under him, most prominently Sam Cagnina and Carmine Romano, conducted the business outside the prison over the ATU telephones and through the mail, usually by using coded communication. According to these informants, the operation was primarily centered in and around New York City, and Inglese's main contact on the outside was his son, Pasquale, with whom he spoke frequently over the ATU telephones.
Other informants reported that Inglese, Cagnina, and Romano also controlled all of the narcotics trafficking within the prison, again arranging the drug buys over the ATU telephones, and that no narcotics transactions occurred there without their approval. According to one informant, contraband, including narcotics and weapons, was introduced into the prison through the mails on a regular basis. Another informant stated that Inglese was "always" on the telephone arranging drug deals.
That Inglese was conducting a New York distribution operation from inside the prison was also reported by Leroy "Nicky" Barnes, formerly a notorious narcotics kingpin, see United States v. Barnes, 77 Cr. 190 (S.D.N.Y. 1977) (HFW), aff'd 604 F.2d 121 (2d Cir. 1979), cert. denied, 446 U.S. 907, 100 S. Ct. 1833, 64 L. Ed. 2d 260 (1980), who had been a close associate of Inglese while incarcerated at Terre Haute. Barnes stated that he had frequently observed Inglese using the ATU telephones, and had subsequently learned that the calls Inglese made had related to narcotics transactions.
Telephone toll records and a pen register analysis revealed that a number of calls had been made from the ATU to telephones in the New York City area used by Inglese's relatives and associates, and by others who were known narcotics dealers. Additional information contained in the wiretap application indicated that Inglese had also sought outside assistance to smuggle firearms into the prison.
Although the specific names of all those assisting Inglese were not known at the time the application was made, the government knew, based on the informants' information, that Inglese used other inmates to do his bidding. The government was therefore able to name seven individuals as "possible interceptees", including Cagnina and Romano, even though probable cause did not exist at the time to name any of them as violators using the designated telephones.
Judge Holder approved the application and issued an order authorizing the government, as part of its narcotics investigation, to intercept communications over these telephones involving Inglese and "others as yet unknown". The order further stated that these interceptions
shall not automatically terminate when the type of communications [described in the government's ap- plication] has first been obtained but shall continue until communications are intercepted which fully reveal the manner in which LOUIS INGLESE * * *, and others as yet unknown, participate in the above- described offenses and which reveal the identities of their confederates, their places of operation and the nature of the conspiracy involved therein or for a period of thirty (30) days from the date of this order, whichever is earlier.
Almost all of the calls monitored between April 12th and May 9th that were highlighted by the government in its report to Judge Holder were made by Inglese, Cagnina, Orlando Hernandez, Alonzo Hodges, Hugh McIntosh, and appellant Diaz. Many times the callers used aliases to refer to themselves; often they spoke in Spanish or in "code". Diaz, himself, made approximately 21 of these reported calls, mostly to his wife, Haydee, in New York. The substance of his monitored calls contained in the government's report dealt primarily with ongoing narcotics transactions.
For example, the second reported call (the sixteenth call actually intercepted) was made by "an unidentified inmate using the name 'JOE' (later identified as appellant Diaz) to Haydee Diaz in New York City. During the conversation, which was in Spanish and translated by a DEA interpreter, "JOE" complained that "it" had not yet arrived from a third person, "AMATO", and "JOE" needed assurances of the promised delivery because doubts were being raised "here" (in the prison). The next day, an inmate using the name "TONY", but also believed to be Diaz, spoke to someone in Miami, apparently "AMATO", who is appellant Lopez. When "TONY" complained of delay, "AMATO" gave excuses about being unable to contact a third party. "TONY" then put Cagnina on the telephone and "AMATO" repeated the excuses to him. "TONY" then got back on the phone, and told "AMATO" to go see the third party and ask him "if he has clothes for you and nothing else, we're interested to see what he says * * * tell him you have to get 2 pairs of shoes * * * if he says yes, ask him when * * * just show up over there, the guy won't talk on the phone * * *." "TONY" then said that he had spoken to someone the night before and had told her to see a friend and "get one shirt * * * in one week we will have it back * * * ." The "clothes", "two pairs of shoes", and "one shirt" referred to in these conversations were apparently coded references to different quantities of narcotics.
In light of these and other incriminating calls, the government, in its first application for a thirty-day extension of the wiretap order, specifically named appellants Diaz and Lopez as additional individuals who were using wire communications to commit the named narcotics offenses, and the court, finding that probable cause existed to believe that they were in fact ...