ROANOKE TIMES
Copyright (c) 1995, Roanoke Times
DATE: Friday, December 29, 1995 TAG: 9512290027
SECTION: VIRGINIA PAGE: C-1 EDITION: METRO
SOURCE: JAN VERTEFEUILLE STAFF WRITER
Halfway through a hearing in federal court Thursday, the prosecutor himself climbed into the witness chair to be questioned by defense attorneys.
It was another strange turn of events in the case of Covington business owners Vittorio "Victor" and Janet Cucci.
The defense had accused the prosecutor, Assistant U.S. Attorney Hunter Smith of West Virginia, of lying about what he knew about evidence seized from the Cuccis and about when he knew it. In an unusual move, U.S. District Judge James Turk suggested Smith take the witness stand and be questioned.
In May, Turk ruled that all evidence seized from the Cuccis' house, business and cars during Victor Cucci's arrest in 1991 had been taken illegally and thus could not be used in the couple's upcoming trial on tax evasion charges.
The government now is trying to convince Turk that it would have discovered most of the "tainted" evidence anyway through other means and should be allowed to use much of it at trial.
"Given what we knew prior to the search, it's reasonably probable we would have found it ... through the use of grand jury subpoenas," Smith told Turk. But the judge's suppression of evidence taken from the Cuccis meant "we lost evidence we would like to use. The sanction is not without teeth."
For one thing, what the government calls a double set of financial records from the Cuccis' two pizza parlors - which investigators think will show that they were skimming proceeds off the top and recording lower income in the "official" records - were found in the house, but nowhere else, and so cannot be used as evidence.
Turk did not rule on what tainted evidence the government could use, but did set the case for trial starting April 27. He also ordered the government to return all illegally seized property to the Cuccis - including children's toys that were taken the night police raided their house.
Police and federal agents stormed into the couple's Covington home while arresting Victor Cucci on a drug charge in July 1991. They held his family and friends - including three children - at gunpoint, which Turk berated them for and ruled was unconstitutional.
Victor Cucci was arrested and is serving time in prison for setting up a cocaine buy for a friend, who turned out to be a government informant. The government believes Cucci had long been involved in illegal activity and may have been laundering illegal proceeds through his numerous businesses in the Covington area. Smith testifed on the stand, however, that the government knew of no one who had ever bought drugs from Cucci.
But, he said, "I think you can be involved in drug deals in many different ways."
For tainted evidence to be admissible, the government must show that it would have found the evidence anyway, that it came from independent sources and that investigators already were pursuing leads in that direction before the illegal search.
The Cuccis' attorneys argued that the government used information found in the illegally seized records to go out and find documents elsewhere that showed the same thing. For example, the defense said the government would not have known the five banks where the Cuccis had accounts if investigators hadn't looked through financial information from the couple's home.
The government later subpoenaed those banks for account histories and will use some of that information against the Cuccis at trial.
Smith said the IRS would have blanketed all banks in the area with subpoenas and found the records eventually.
Charles Little, a West Virginia IRS criminal investigator, testified at a November hearing that investigators would have had to subpoena bank records, even though they found some in the house, because they didn't know whether they had the complete set.
But the defense argued the government would not have launched a tax investigation if investigators had not seen what was in the Cuccis' files.
A criminal investigator in the Roanoke IRS office testified in November that the IRS never opened an investigation of the couple; as the office's money laundering specialist, she simply was looking at the couple as part of a review "in the development stage."
The Drug Enforcement Administration, U.S. Customs and the state police were all investigating the Cuccis by the spring of 1991. At the time, the Roanoke IRS had an on-going feud with the DEA over an unrelated matter, so the office decided not to participate in the other agencies' investigation, the IRS investigator testified.
But Smith maintained that a tax investigation by the West Virginia IRS was inevitable. Turk agreed, although he did not rule on the defense's motion to suppress the tainted evidence and dismiss the tax charges. But since most drug dealers don't pay taxes on their illegal profits, Turk said, the IRS usually investigates drug suspects with lots of assets, like Victor Cucci.
"It's just like the night follows the day," Turk said. "The government would have been into the tax matter."
Attorneys questioned Smith on the witness stand for nearly an hour about who had reviewed the tainted evidence and when he had been told about the double set of financial records and other information.
LENGTH: Medium: 92 linesby CNB