of prosecution, because we are unable to use evidence obtained through courtordered interceptions * ** In addition to cases, there are a number of major investigations that we are now conducting that will collapse due to the restrictions presently placed on the use of intercepted information * * * That is the end of my quote from my testimony last year. Unhappily, this was no idle prediction. Not only have investigations collapsed, but we have been obliged to dismiss a number of cases because of our inability to divulge in the courtroom the contents of court-ordered wiretaps. I cite just one case to emphasize the seriousness of this challenge to law and order. One of the principal scourges that law enforcement is battling in New York State is narcotics. In this battle the importers and the wholesalers often-always, I should say-so insulate themselves that, although they make delivery and sale arrangements, they never touch the stuff, they never touch the contraband. This past November 1961 we in New York County were forced to move for the dismissal of criminal charges against seven defendants who had been engaged in wholesale trafficking in heroin. They operated extensively in the East, and did a narcotics business running into millions of dollars a year. They had been arrested in January 1960 as a result of evidence obtained by court-ordered wiretaps, demonstrating the key role of each in this massive operation. The seven defendants included one Joseph Russo, who had previously served one State's prison term of 2 to 5 years on narcotics charges, and one Aniello Carillo, whose police record covers a page and a half. Without the use of the wiretaps in the courtroom, however, their guilt could not be established. The most diligent policework could not duplicate the evidence that we had obtained through the use of authorized interceptions. Had we been permitted to use the taps, we could have demonstrated their guilt beyond all reasonable doubts. The buyer with whom these defendants dealt, one John Ross, when arrested, was in possession of heroin which, when cut, packaged, and sold at "retail" was worth one-quarter of a million dollars. He was convicted after trial and was sentenced to a term of 712 to 15 years' imprisonment. But the seven other defendants, major figures in the importation and sale of heroin, walked out of the criminal courts building without even being subjected to a trial. The recommendation for the discharge of these seven defendants is a court document which graphically describes the problem confronting us. Mr. Chairman, I request permission to make it part of the record of this hearing. Senator ERVIN. That is the indictment No. 180-1/2-1960? Senator ERVIN. This will be made a part of the record immediately after Mr. Hogan's testimony. It will be printed immediately after the completion of Mr. Hogan's written statement and before any questions. Mr. HOGAN. As you will observe, the recommendation for dismissal is long, 11 pages, but I would like, in concluding my statement, to read just two paragraphs because I think they summarize what Í have been trying to say today with respect to the imperative need for legislation which would permit the use of court-authorized wire tapping, and I now quote from this recommendation to dismiss the seven defendants who had been indicted for the possession and sale of heroin. This we said to the court: The lack of realistic wiretap legislation has frustrated law enforcement in this case and will continue to do so in other cases. This is a travesty of justice in which the district attorney's office plays the part of a most unwilling accomplice. We have evidence of the most vicious type of criminality. The constitution of the State of New York and our code of criminal procedure specifically authorize us to obtain and to use such evidence. But the Federal courts, by their interpretation of 31 words in the Federal Communications Act of 1934, have erected a roadblock which deprives us of the right to go forward with a case which, in all likelihood, would put seven of society's most depraved enemies behind bars for many years to come. Congress, which never intended to usurp the police power of New York State when it passed the Federal Communications Act of 1934, has, to date, failed to act in this crucial area of criminal justice. The diligent and superb work of the narcotics bureau detectives in breaking up this underworld organization has gone for naught. Moreover, unless Congress acts, this miscarriage of justice will be repeated in other cases, which are awaiting trial, and, even more disturbing, law enforcement will continue to be handcuffed in its attempt to stamp out organized crime syndicates and the worst elements in our society. (The indictment referred to follows:) COURT OF GENERAL SESSIONS, COUNTY OF NEW YORK INDICTMENT NO. 180-1/2-1960 THE PEOPLE OF THE STATE OF NEW YORK, AGAINST JOSEPH RUSSO, ANTHONY Russo, ANIELLO CARILLO, FRANK CARILLO, ALPHONSE MOSCA, JACK CIRAULO AND ANTHONY SAVOCA, DEFENDANTS RECOMMENDATION FOR DISCHARGE Indictment. On January 28, 1960, the Grand Judy of the County of New York indicted the above-named defendants for the crimes of conspiracy as a felony, feloniously selling a narcotic drug, feloniously possession a narcotic drug with intent to sell, feloniously possessing a narcotic drug, and conspiracy as a misdemeanor. This was the first indictment under a new section of the Penal Law making it a felony to conspire to sell a narcotic drug. The charges allege that the above-mentioned defendants, between December 24, 1959, and December 29, 1959, conspired to and did sell a kilogram of heroin to John "Baps" Ross, considered to be the largest retail distributor of narcotics in the country. The heroin involved is worth between a quarter of a million and a half million dollars on a retail level. Evidence. Prior to December of 1959, detectives of the Special Investigation Unit of the Narcotics Bureau of the Police Department of the City of New York were conducting an inquiry into the illicit narcotics traffic of Joseph “Fatty" Russo, who, with his brother Anthony Russo, was engaged in large scale importing of heroin from abroad. It was ascertained that Frank "Chico" Carillo was a customer of Joseph Russo. Frank Carillo was in partnership with his father Aniello Carillo, and utilized Anthony Savoca as their courier. Aniello Carillo had as a customer Alphone "Funzi” Mosca, long associated with narcotics traffic. Mosca's chief customer for many years was the aforementioned "Baps" Ross. The modus operandi of the ring was as follows: John Ross would contact Mosca to secure a kilo of heroin. Mosca would receive the money. He would then contact Aniello Carillo who, in turn, would notify his son Frank Carillo that a transaction was to take place. Frank Carillo would tell Joseph Russo, get the money from Mosca and then deliver the money to either Joseph or Anthony Russo, prior to the delivery of the narcotics. Frank Carillo would then contact his friend Anthony Savoca, who on the date of the transfer would place his automobile in a given location. Savoca would then call Frank Carillo and, with the use of a code, communicate the location of the automobile. After Savoca had told Frank Carillo the location of the car, Carillo would then relay this information to either Anthony or Joseph Russo. The Russo brothers would then drive to the location of Savoca's car, enter it and drive it to another part of the city. Then Jack "Jake" Ciraulo (an uncle of the Russos) would place the kilo of heroin in Savoca's car. After this, Savoca would be notified of the new location. Savoca would then bring Ross or his agent to the car and complete the delivery. The reason for this devious method of operation is obvious. Only two or three men would actually handle the narcotics. Many in this conspiracy did not know each other. Ross knew only Mosca and Savoca, and would never know how or where the narcotics were to be delivered. Mosca in all probability did not know the Russos, or Ciraulo or Savoca. The Carillos would not know Ciraulo or the ultimate location of Savoca's car or how the heroin was placed therein. The Russos and Ciraulo did not know Ross and Savoca would only know the Carillos and Ross. Thus, even if there were a break in one of the links of the chain, the others would be secure from apprehension. Although the key members of the ring never personally handled the narcotics, it was essential that they communicate with each other as to the amount, place, and type of transaction. As a result of an intensive investigation it was learned that the communications center for the conspiracy was the telephone of Frank Carillo, as was brought out by defense counsel in the trial of John Ross. Based on the information the officers had gathered, an application was made to a justice of the Supreme Court for a court order authorizing the tapping of Carillo's telephone under the provisions of Section 813-a of the Code of Criminal Procedure of the State of New York. The application was granted by the Supreme Court Justice and the tap was installed. While the conversations over the telephone were mostly in guarded language and, indeed, in code, the detectives were able to break the code and verify the existence of a conspiracy among the defendants to sell a kilo of heroin to Ross. The key conversations were on December 28, and December 29, 1959. As a result of these conversations, the detectives, on December 29, 1959, proceeded to 30th Street between First and Second Avenues, where they kept Savoca's car under observation. Surveillance was also maintained on the home of Frank Carillo at 438 East 13th Street, New York, N.Y. At 7:45 p.m., Joseph and Anthony Russo arrived at Frank Carillo's home in a grey 1960 Thunderbird, license 9Z9281 N.Y. Joseph Russo entered Carillo's apartment. At 8:00 p.m. Joseph Russo left 438 East 13th Street, reentered his automobile and drove with his brother to 30th Street between First and Second Avenues. Anthony Russo then entered Savoca's car with a key and drove it to Second Street between First and Second Avenues where he parked it. He got out, locked the door, was picked up by his brother Joseph and they drove away. At 9:40 p.m. Jack Ciraulo entered Second Street from Second Avenue, walked to Savoca's car (1952 Cadillac license 8106BC N.Y.), opened the door with a key, entered, started the motor, remained for about a minute, turned off the motor, locked the car and walked to Second Avenue where he was picked up in another car which drove away. At 11:15 p.m. Savoca and Ross came into the block. Savoca opened the door of his car with a key. They both entered the car and then Ross emerged with two packages in his hand. Ross walked east and was apprehended at Second Street and First Avenue. The packages in Ross' hand contained one kilogram (2.2 pounds) of pure heroin. The kilo of pure heroin would eventually be "cut" to between 50,000 and 100,000 decks of heroin at $5 a deck. CRIMINAL RECORDS AND UNDERWORLD STANDING OF DEFENDANTS Joseph Russo, B No. 274645: Considered a large scale wholesaler. Secures his drugs from overseas connection. On April 18, 1952, was sentenced in General Sessions to 21⁄2 to five years in State Prison for an attempt to feloniously possess a narcotic drug. Was arrested on April 29, 1949, for criminally receiving stolen property; case dismissed by Grand Jury. At time of arrest, Joseph Russo had been under investigation for about seven months by Narcotics Bureau. Would never handle narcotics personally. Anthony Russo, B No. 451109: Younger brother of Joseph Russo. No prior record. Considered a major distributor with his brother Joseph. Never handled narcotics personally. On October 10, 1959, he was observed handing a paper box containing $7,500 in United States currency to Anthony "Bootsie" DiPasqua on the corner of Lafayette and Broome Streets in New York City. When questioned at the Fifth Detective Squad about money, they both remained mute. Aniello Carillo, B No. 110445: Considered a distributor of narcotics in kilo quantities. Has twelve arrests for gambling and narcotics since 1933. Arrested on December 6, 1940, and January 31, 1941, for violation of Harrison Act. Sentenced on March 24, 1951, in United States District Court to one year and one day on each case to run concurrently. On April 26, 1946, sentenced to one year in the penitentiary in Special Sessions Court for unlawfully possessing narcotic drug. On August 5, 1948, sentenced to three years in Federal Prison for violation of Harrison Act. On February 2, 1952, sentenced to 3-6 years in State Prison in General Sessions for felony narcotics conviction. He was released from Clinton Prison on February 15, 1958, after serving maximum term. While in prison his son Frank handled his narcotics business through Aniello's contacts. Faced life on this charge. Because of record could not handle transactions personally, only directed son's activities. Frank Carillo, B No. 345152: Considered a distributor of narcoties in kilo quantities. Has arrests for vagrancy in 1954, for rape in 1954, and assault in 1955, both cases dismissed. Arrested assault in the second degree (with gun) in 1956, placed on probation in General Sessions. This was first arrest for narcotics. Subject has been under investigation two times prior to this arrest. In 1958 and 1959. He enjoys the confidence of many major violators in narcotics traffic, probably through his father's influence. Previous to this investigation it was known that he would make narcotic deliveries in kilo quantities himself. During this investigation, however, he secured the services of Anthony Savoca. Anthony Savoca, B No. 368175: Considered a courier or runner in this operation. Has no narcotics record. Has arrests for assault with a lug wrench, and grand larceny. Also was arrested in Miami for vagrancy on March 2, 1954, along with Frank Carillo. Little known about Savoca. Would not handle narcotics until it was placed in his car and it became necessary to give same to customer. Jack Ciraulo: Uncle of Joseph and Anthony Russo, fled jurisdiction during roundup and is still unapprehended on this charge. Alphonse Mosca, B No. 99106: Considered a major violator in wholesale narcotics traffic. Criminal activities go back as far as 1931 when he was arrested for assault and robbery and was sentenced to the penitentiary on May 19, 1932, in General Session on his conviction of robbery in the second degree. On September 26, 1947, he was sentenced to one year in the penitentiary for unlawfully possessing a narcotic drug. Investigated by Narcotics Bureau on several occasions. It was known for many years that Mosca was the "Connection" for "Baps" Ross. Never handled narcotics personally. John Ross, B No. 291030: For many years the undisputed "king" of narcotics sellers on a retail level. Had many street pushers working for him. Reputed to have hundreds of thousands of dollars stashed in Florida. Rarely picked up narcotics himself. On occasion of arrest stated that his pickup man had to go to a funeral; otherwise he never would have accepted delivery personally. Went to trial on this case and was convicted by a jury of feloniously possessing a narcotic drug with intent to sell. He is currently awaiting sentence before Judge Mitchell D. Schweitzer of the Court of General Sessions and faces a sentence of 72 to 15 years. None of these men are users of narcotic drugs with the except of "Baps" Ross, who occasionally smoked marijuana. Ross told arresting officers that he did not feel any moral guilt over his dope selling activities, since he was helping "sick people." Recommendation.—Ordinarily, the District Attorney moves for the discharge of defendants either because he cannot prove guilt beyond a reasonable doubt or in the interests of justice. Neither reason motivates the application in the instant case. The People feel that the guilt of all of these defendants can be established, not only beyond a reasonable doubt but beyond all doubt. And indeed, the interest of justice would require the prompt isolation of these men from society. Nevertheless, the People cannot proceed further with this case. The key evidence in this case, cementing the conspiracy and convicting the defendants by their own words, are the wiretaps. The United States Court of Appeals for the Second Circuit has held that the introduction of wiretap evidence in a trial constitutes a violation of Section 605 of the Federal Communications Act and that those who testify to or introduce wiretaps commit a federal crime. [Pugach v. Dollinger 277 F. 2d 739, aff'd 365 U.S. 4581; Benanti v. U.S. 355 U.S. 96.] As a result of this ruling the People are faced with the dilemma of having to commit a federal crime in order to convict these racketeers. It has been the People's contention that Section 605 of the Federal Communications Act of 1934 was never intended to proscribe law enforcement officials from seeking and using evidence of crime. Indeed, Article 1, section 12 of the Constitution of the State of New York, enacted in 1938, specifically provides for court authorized wiretapping, and Section 813-a of our Code of Criminal Procedure implements the Constitutional provision. In this case, the detectives acted in good faith upon express State Constitutional and Stautory authority. However, although we disagree with the Federal Court's interpretation of the law, we must abide by it. In a government of law it is the particular duty and obligation of a law inforcement official to obey the law, however strenuously he may disagree with it, and even if he is acting in a most righteous cause. If we condone any deviation from this view, then we condone anarchy and disrespect for all law. Therefore, the District Attorney of New York County will not introduce wiretap evidence in any court until Congress expressly authorizes the introduction of such evidence. The District Attorney has delayed proceeding with this trial in the hope that Congress would act. While there are a number of bills pending both before the House and Senate which would permit the use of court-authorized wiretapping, none was passed or even reported out of Committee. It is as if Congress is telling law enforcement-"You may see evil, but may not hear or speak of it." The lack of realistic wiretap legislation has frustrated law enforcement in this case and will continue to do so in other cases. This is a travesty of justice in which the District Attorney's office plays the part of a most unwilling accomplice. We have evidence of the most vicious type of criminality. The Constitution of the State of New York and our Code of Criminal Procedure specifically authorize us to obtain and to use such evidence. But the Federal Courts, by their interpretation of 31 words in the Federal Communications Act of 1934, have erected a roadblock which deprives us of the right to go forward with a case which, in all likelihood, would put seven of society's most depraved enemies behind bars for many years to come. Congress, which never intended to usurp the police power of New York State when it passed the Federal Communications Act of 1934, has, to date, failed to act in this crucial area of criminal justice. The diligent and superb work of the Narcotics Bureau detectives in breaking up this underworld organization has gone for naught. Moreover, unless Congress acts, this miscarriage of justice will be repeated in other cases, which are awaiting trial, and, even more disturbing, law enforcement will continue to be handcuffed in its attempt to stamp out organized crime syndicates and the worst elements in our society. The People cannot convict these defendants without the introduction of wiretap evidence. I, therefore, respectfully recommend that the defendants be discharged on their own recognizances. No previous recommendation in this case has been made to any judge of this court. Dated, New York, N. Y., November 14, 1961 Approved: FRANK S. HOGAN, District Attorney. IRVING LANG, Assistant District Attorney. Mr. HOGAN. That is the end of my statement, Senators. I am grateful for your kind attention. Senator ERVIN. Well, the committee is certainly grateful to you. I think your statement places beyond dispute the fact that it is necessary for the protection of society that there be legalized wiretapping under some restrictions which would make it certain that there is no indiscriminate invasion of the right of privacy. Mr. HOGAN. That is my argument and my sincere belief. |