A state Supreme Court judge decided today to conduct an inquiry into charges that the surveillance underpinning the indictment of former labor secretary Raymond J. Donovan was tainted by improper conduct on the part of the Federal Bureau of Investigation.
Judge John P. Collins said the evidence submitted by lawyers for Donovan and his codefendants was "circumstantial but . . . sufficient" to raise doubts about the FBI's good faith in attesting to the necessity of the 1979 electronic surveillance.
"The defense has -- in its papers and argument -- told a tale of intrigue, perjury and star chamber proceedings," the Bronx judge ruled. "It has pitted FBI agents against each other and against assistant U.S. attorneys as well as the U.S. Department of Justice. In the end they claim a now-deceased federal district judge was hoodwinked."
The surveillance was aimed at a south Bronx warehouse-office run by William P. Masselli, a reputed member of the Genovese crime family. The eavesdropping was authorized on Jan. 4, 1979, by the late U.S. District Court Judge Henry Werker on the strength of an FBI affidavit saying it was necessary to get to the bottom of a truck hijacking ring working out of the building.
Defense lawyer John Nicholas Iannuzzi charged, however, that the FBI's key informer, ex-convict Michael Orlando, was a principal hijacker and that the FBI withheld that information from Justice Department prosecutors and from Werker in seeking the court-ordered eavesdropping.
As a consequence, the defense contends that the tapes compiled during the 1979 surveillance -- now the principal evidence in the Donovan case -- are tainted and must be suppressed.
Collins said he will set a date for evidentiary hearings after a conference Monday morning with prosecuting and defense attorneys. The hearings are expected to turn into a minitrial of the FBI's conduct in the Masselli investigation; that conduct already has been the subject of several internal FBI inquiries, but the results of those have never been made public.
Iannuzzi, who represents Masselli, has charged that Orlando drove a truck full of hijacked meat into Masselli's warehouse on Nov. 30, 1978, while FBI agents watched and took photos from a location nearby.
Bronx prosecutors, who have interviewed FBI agents in the case, have denied the allegation. They say they know of no evidence that Orlando took part in any hijackings until nearly three months after the surveillance started, and they note that he later was prosecuted for those offenses along with Masselli.
Judge Collins said the first question he wants to explore is what FBI agents Robert Levinson and Lawrence Sweeney, the two who dealt with Orlando, knew of their secret informer's relationship with Masselli at the time of the eavesdropping application -- and how much government prosecutors were told about that relationship.
The judge said he will also explore why Orlando was not promptly identified to Judge Werker when Orlando's voice turned up on the tapes in March 1979. However, Collins noted that by then, there was "a multitude of other grounds" -- in addition to crimes by Orlando -- to justify continuation of the surveillance.
The tapes have a bearing on the Donovan case because Masselli was a subcontractor for Donovan's construction company on a series of New York subway projects.