Government documents released in June indicated federal agents were still listening to Trenton Mayor Tony Mack's cell phone conversations after the authorized tap possibly stopped — leaving open the possibility that the government engaged in warrantless wiretapping of the mayor of New Jersey’s capital city.
TRENTON — For nearly six months, FBI agents acting under the authority of a court-authorized wiretap listened in on Mayor Tony Mack’s cell phone calls as part of an investigation that eventually led to Mack’s indictment.
Two days after Mack’s home in Berkeley Square was raided last July, the authorized tap stopped, according to a letter prosecutors sent to those who were caught on the recordings.
But government documents released in June indicated federal agents were still listening after that date — leaving open the possibility that the government engaged in warrantless wiretapping of the mayor of New Jersey’s capital city.
It is likely the issue will be contested by defense lawyers in the case as they seek to have the judge throw out some of the key evidence against Mack and his alleged co-conspirators, who are scheduled to face trial in January.
“It will come out at the time of motions,” said Jerome Ballarotto, a lawyer for Mack’s co-defendant Joseph “JoJo” Giorgianni.
Ballarotto said the government’s evidence in the case is under seal and he could not discuss it. Mack’s attorney Mark Davis did not return several requests for comment.
Motions to suppress evidence could be filed by next month.
Mack, his brother Ralphiel Mack and Giorgianni were arrested in September 2012 and indicted Dec. 6 following a nearly two-year FBI investigation. The probe had government cooperators posing as parking garage developers who delivered money to Giorgianni and met with Mack, allegedly in exchange for official help with building a garage in downtown Trenton.
Court papers filed this June as part of the corruption case against Mack reveal investigators made recordings of his phone conversations from Aug. 3 to Aug. 7, 2012.
The recordings were disclosed to the defense attorneys in the case as part of the normal discovery process.
But in notification letters the U.S. Attorney’s office sent to some of the individuals who were recorded, the court-authorized recording time frame is said to have ended earlier. The FBI’s “periods of authorized interception” included the period from Feb. 8 to July 20, 2012, the letters say.
It is unclear whether all recording actually stopped July 20. While one section of the notification letters lists July 20 as the final day of authorized wiretaps, it also provides a number of dates when the government went to court to ask for 30-day renewals of authorization to tap Mack’s phone.
For that wiretap, the last extension issued by the judge was dated July 6, 2012, the letter says. That would mean a 30-day extension could have allowed wiretapping through Aug. 5. But it is unclear whether the 30 days actually began July 6, rather than at a later date, for example if the government was applying for its extensions early.
Also unclear is why, if the court authorized recordings beyond July 20 — or beyond Aug. 5 — that was not spelled out in the letters to people who were wiretapped.
A spokesman for the U.S. Attorney’s Office declined to discuss the recordings and accompanying documentation.
“We can’t really comment on the nature of what was provided,” spokesman Matt Reilly said.
Tight control of evidence
The way the government released the wiretaps of Mack’s calls to the defense three months ago also raises questions about what the recordings say, and whether they contain material that will impact the case beyond the allegedly incriminatory statements prosecutors laid out in their original complaint.
The first court order for the government to release its wiretapped evidence to the defense was issued just days after indictments were handed up in December. Yet the recordings of Mack’s phone were not finally released until June 26, when Judge Michael A. Shipp signed a protective order, which sets rules on the disclosure of evidence.
Reilly said all the discovery was disclosed to the defense in a timely manner.
“We turned over to the defense everything that was required,” he said.
The protective order does not only set these restrictions on the disclosure of the Mack wiretaps, but also on the release of interceptions of text messages from Giorgianni’s cell phone. The texts were intercepted between Aug. 23 and Sept. 8, 2011, during nearly two years of court-authorized wiretaps on Giorgianni’s cell number.
The order sets a number of restrictions on the distribution of the evidence.
Rather than simply dumping all the evidence in the defense attorneys’ laps, the order lays out a circuitous process for the release of the wiretap recordings. It says the government will disclose the recordings to Davis, and he will then pass the information along to Ballarotto and the attorney for Ralphiel Mack.
In addition, each defendant must be notified before his records are used in court.
Giorgianni’s late summer 2011 text messages “or any evidence derived therefrom” cannot be used in court unless Giorgianni himself is provided at least 14 days advance notice, the order says. A copy of the text message that will be used also must be sent to him.
Likewise, attorneys for Giorgianni and Ralphiel Mack cannot use any of the four days of the mayor’s recorded calls without giving Mack at least two weeks’ notice and copies of the audio they want to use, according to the order.
Contact Alex Zdan at azdan@njtimes.com or (609) 989-5705.
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