video surveillance in the ten day reports in which the government gave the court the total number
of conversations and activities, the number of minimized conversations and activities, and
detailed summaries of the conversations and activities intercepted.

Finally, defendants argue that the government failed to explain its failure to attempt
alternative investigative techniques. Regarding the law on this issue, “[a]ll that is required is that
the investigators give serious consideration to the non-wiretap techniques prior to applying for
wiretap authority and that the court be informed of the reasons for the investigators’ belief that
such non-wiretap techniques have been or will likely be inadequate.” United States v. Lambert,
771 F.2d 83, 91 (6th Cir. 1985). Here, in issuing two separate orders to implement interception
of audio and video conduct and activities, Judge Aspen found probable cause based on the
affidavit of Special Agent Michael N. Cole, FBL This affidavit properly made the showing
required under Lambert. Cole set forth his experience and his opinion that normal investigative
techniques had been tried and failed or reasonably appeared unlikely to succeed if tried or were
too dangerous and would be unsuccessful as far as meeting all the goals of the investigation of
the named targets. Based upon his experience and understanding of the subjects, Cole concluded
that standard visual surveillance would not be effective. Cole also concluded that the use of
confidential informants was not an option for extensive further investigation. Furthermore, the
affidavit also discussed the probable failure of search warrants and/or a grand jury investigation,
including subpoenaing possible suspects. Finally, Cole concluded that interviewing the subject
and their associates and using undercover agents would be too dangerous. This was an opinion

that Judge Aspen was entitled to accept.


United States v. Torres, 751 F.2d 875, 884 (7th Cir. 1984). In determining whether an order
describes with sufficient particularity the suspected offenses and the conduct sought to be
intercepted, a court can look to the application and the affidavit, as well as the order. See United
States v. Tortorello, 480 F.2d 764, 780-81 (2d Cir. 1972). Here, the application and order were
sufficiently particular. They contained a particular description of the type of conduct and
activities which were sought to be intercepted and a statement of the particular offenses to which
they related, which interceptions would reveal the manner in which the described crimes were
being committed and which would reveal the identity of the coconspirators, their methods of
operation, and the nature of the conspiracy.

Defendants further argue that the video recordings must be suppressed because the agents
did not minimize the recording. Whether the government properly minimized its interception is
to be determined by a case-by-case analysis of the reasonableness of its conduct. Scott v. United
States, 436 U.S. 128, 139-40 (1976). The reasonableness of its actions “in a given case is
affected by a number of factors, including the nature and scope of the alleged conspiracy, the
government’s reasonable expectation of the character of the conversations they will be
intercepting, and the extent of ongoing judicial supervision over the surveillance.” United States
v. Dorfman, 542 F.Supp. 345, 390 (N.D. Ill. 1982). In the present case, the agent’s video
surveillance minimization efforts were objectively reasonable. The scope of the alleged
conspiracy was broad, and the government’s expectation of the character of the video images and
conversations they would be intercepting was also wide ranging as demonstrated by the example
of important evidence obtained throughout the interceptions of the handling of the illegal

gambling proceeds. Furthermore, there was extensive judicial supervision over the audio and


For the aforementioned reasons, DiMarco’s Motion to Suppress Governmental Video
Surveillance of the Grand Palace Bingo Hall and Cozzo’s Motion to Suppress Governmental

Television Surveillance of the “Office” of the Grand Palace Bingo Hall are DENIED.

ENTER:

‘ -) ¢
\ Ne /}
An VD ~f
mes B), Zagel ff
United States District Jui



‘Minute Order Form (06/97)

United States District Court, Northern District of Hlinois

Name of Assigned Judge
or Magistrate Judge

James B. Zagel

Sitting Judge if Other
than Assigned Judge

CASE NUMBER

02 CR 400 - 1,7 DATE 1/2/2003
CASE UNITED STATES vs. PHILLIP J. COZZO
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.}
DOCKET ENTRY:
q) a Filed motion of [ use listing in “Motion” box above.]
(2) o Brief in support of motion due _
(3) im Answer brief to motion due _. Reply to answer brief due_
(4) O Ruling/Hearing on set fort
(5) a Status hearing[held/continued to] [set for/re-set for] on. setfor at
(6) a Pretrial conference[held/continued to] [set for/re-set for]on___———ssetfor_ at.
(7) im] Trial[set forke-set forlon_ se at__.
(8) Oo {Bench/Jury trial} [Hearing] held/continuedto at
(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
CUFRCP4(m) (Local Rule 41.1 COFRCP41(a)(1) OO FRCP41(a)(2).
(10) a [Other docket entry] Motion (50-1) to suppress evidence is denied. Enter Memorandum
Opinion and Order.

a1) [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required number of notices

Notices mailed by judge’s staff.

NAN 7 ~ 2003

are dackered

Notified counsel by telephone.

Y_ | Docketing to mail notices.

Mait AO 450 form Biot cep Eas

Copy to judge/magistrate judge.

ate mailed notice
courtroom

DW deputy’s
initials

Datdbsishe seecuved inl J
central Clerk’s Office

mailing deputy inicials

o>



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

v. No. 02 CR 400-4, 7
Judge James B. Zagel
PHILLIP J. COZZO et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Defendants DiMarco and Cozzo, joined by other defendants, have moved to suppress the
evidence obtained from court-ordered video recording of conduct inside the office at the Grand
Palace. They have also moved to suppress the evidence obtained from the court ordered audio
interception pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968
[“Title If], 18 U.S.C. §§ 2510 et seg. Defendants have four general arguments: (1) the initial
orders were supported by insufficient probable cause; (2) the orders did not meet the Fourth
Amendment’s requirement of particularity; (3) the government did not properly minimize
interception; and (4) the government failed in its affidavit to explain its failure to attempt
alternative investigative techniques. The government disputes these arguments and raises the
additional argument that certain defendants lack standing to challenge the interception.!

First, defendants challenge the initial authorization of interception as lacking probable
cause. In determining whether or not affidavits are insufficient on their face to establish probable

cause, the issuing judge must be guided by the totality of the circumstances standard set forth in

' Because defendants’ purported arguments fail to render the orders invalid, I decline to

address the standing issues, although they appear to be meritorious. , a


Gates. He must take a common sense and non-technical approach to the information in the
affidavit, to determine if it provides facts sufficient to cause a reasonably prudent person to
believe that a search will uncover evidence of the alleged crime. United States v. Roth, 201 F.3d
888, 892 (7th Cir. 2000). As a general rule, a reviewing court does not conduct de novo review
of this determination by the issuing judge. See Illinois v. Gates, 462 U.S. 213, 238-49 (1983).
Rather, reviewing courts give great deference to the issuing judge’s decision. Jd. That decision
and the affidavits supporting the probable cause determination are presumed to be correct and
valid, absent a strong showing to the contrary. See Franks v. Delaware, 438 U.S. 154, 171
(1978). The defendant must show that the decision was clearly erroneous, and close cases are to
be resolved in favor of upholding the warrant. United States v. Sleet, 54 F.3d 303, 306 (7th Cir.
1995); United States v. Pless, 982 F.2d 1118 (7th Cir. 1992); United States v. Spears, 965 F.2d
262, 269-70 (7th Cir. 1992). Here, defendants have not given me reason to avoid applying the
presumption that Judge Aspen’s decision was correct. They have not shown his decision to be
clearly erroneous. At best - and this gives a lot to the defendants - this decision was a close call,
but such situations are resolved in favor of upholding the warrant.
Defendants also argue that the orders did not comply with the particularity requirements
of the Fourth Amendment. This contention lacks merit. Regarding video surveillance:
[T]he judge must certify that “normal investigative procedures have been tried and have
failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous,” 18
US.C. § 2518(3)(c), and that the warrant must contain “a particular description of the
type of communication sought to be intercepted, and a statement of the particular offense
to which it relates,” § 2518(4)(c), must not allow the period of interception to be “longer
than is necessary to achieve the objective of the interception, nor in any event longer than
thirty days” (though renewals are possible), § 2518(5), and must require that the

interception “be conducted in such a way as to minimize the interception of
communication not otherwise subject to interception under [Title I.]”