Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: FRIDAY, May 19, 1995 TAG: 9505190108
SECTION: VIRGINIA PAGE: A1 EDITION: METRO
SOURCE: JAN VERTEFEUILLE STAFF WRITER
DATELINE: LENGTH: Medium
A federal judge on Thursday chastised federal agents who searched Victor and Janet Cucci's home without a warrant and said none of the evidence they gathered could be used against the couple in their upcoming tax evasion trial.
The Cuccis' consent to search the home was not voluntary and the search was overly broad, U.S. District Judge James Turk ruled. He said all evidence taken from their home, businesses and cars will be suppressed.
Police and federal agents stormed into the couple's Covington home while arresting Vittorio "Victor" Cucci on drug charges in July 1991 and held his family and friends - including three children - at gunpoint, "in hostage-like fashion," Turk wrote in the lengthy ruling entered Thursday.
The Cuccis ran a pizza parlor and other businesses in Covington before Victor Cucci's conviction. He was sentenced to 14 years in prison for attempted cocaine trafficking.
Testimony at court hearings showed that between 25 and 30 officers, led by the West Virginia office of the Drug Enforcement Administration, surrounded the Cuccis' home at 11:30 p.m. after seeing Victor Cucci participate in a cocaine buy, part of a sting operation against him.
Police kicked in the door, held Janet Cucci and family friends at gunpoint for several hours, and refused to let them talk to each other or even use the bathroom. Victor Cucci was taken to a police car, where permission to search his home was obtained through "police coercion" and threats, Turk wrote.
"There is simply no excuse for this type of police activity," the ruling says. "The court can only hope that the high-handed tactics used in this instance were an aberration brought on by the seriousness of the crimes at issue, rather than the accepted practice of the agents involved."
Turk's ruling means that financial records found that night in the house and in one of the Cuccis' cars cannot be used against the Cuccis. Those records were the basis for tax evasion charges brought by the government; the trial is scheduled for later this year.
Whether the prosecutor has any other evidence to present against the Covington couple is not clear. Assistant U.S. Attorney Hunter Smith of West Virginia could not be reached for comment Thursday. Although the Cuccis lived in Southwest Virginia, West Virginia authorities handled the case because an informant, who agreed to befriend and buy cocaine from suspected drug dealer Cucci, lived in West Virginia.
Janet Cucci's attorney, Thomas Leggette, said he is not surprised by Turk's decision.
"It's the worst search I ever saw," Leggette said. "To me, the shocking fact was we had innocent people - an innocent wife, innocent children - who had guns put to their head."
The Cuccis' son Marco, 5 years old at the time of the arrest, still suffers emotional problems, according to testimony.
Prosecutor Smith had argued that agents didn't have time to get a search warrant after setting up a drug deal in which Cucci participated. But Turk said there was no reason that Cucci would have suspected he was going to be arrested and that police had sufficient time to obtain warrants. About 61/2 hours transpired between the drug buy and Cucci's arrest.
Turk held a three-day hearing in November to listen to evidence and another in March to hear attorneys for the Cuccis and for the government to argue whether the evidence should be suppressed.
In his ruling, Turk noted that 27 witnesses testified at the November hearing. Missing from those witnesses was the DEA's lead agent in the case, Austin Burke, whom Cucci said threatened him into signing a search consent form.
"His failure to testify must, at least to some degree, be viewed as adding credibility to the testimony of the defendants," Turk said, writing that he found the defendants' version of events "more credible" than the police version.
The ruling also notes that, despite little education, Victor Cucci came to own two restaurants, a car dealership, numerous other businesses, and a lot of real estate.
"In addition to his financial acumen, Cucci was known throughout the community as an individual who regularly gave his time and money to charitable organizations," Turk wrote. "In short, the defendants were model citizens who had never been in trouble with the law."
He also noted that the DEA's informant was a known drug dealer who agreed to help with Cucci's arrest in order to get a plea agreement on charges he faced.
by CNB