Opinion
S1 02 Crim. 0477 (LAK)
September 23, 2002
ORDER
Defendant Gabriel Herrera moves to dismiss the two count indictment, which charges a cocaine distribution conspiracy as well as one substantive count, on the ground that a similar indictment is pending against him in the District of Maryland. Alternatively, he asks to suppress evidence obtained through electronic surveillance on the ground that the application for authorization to conduct the surveillance did not adequately establish the inadequacy of alternative investigative measures.
The challenge appears to be directed only at the initial authorization. In any case as will appear. it is no stronger with respect to the subsequent orders.
The Motion to Dismiss On their faces, the Maryland indictment and the indictment before this Court allege two different narcotics conspiracies which defendant nevertheless claims are one and the same, relying on the so-called Korfant factors. See United States v. Korfant, 771 F.2d 660, 662 (2d Cir. 1985). The argument, however, is baseless.
Korfant and similar cases all deal with the question whether a second prosecution for conspiracy is barred by the Double Jeopardy Clause on the theory that the second prosecution constitutes the same offense as that which was the subject of the first. Here, however, jeopardy has not attached with respect to either indictment. There is, in consequence, no double jeopardy problem. The analysis of the Korfant factors in which defendant would have the Court engage will become necessary if, and only if, jeopardy attaches on one of the indictments and an application is made to dismiss the other on appropriate grounds. Defendant has cited no authority, and the Court is aware of none, that requires dismissal of an indictment in one district because a substantially identical indictment is pending in another.
The Motion to Suppress Herrera claims also that the government failed to demonstrate the inadequacy of alternative investigative means for obtaining the information sought through the wiretap and that its application therefore was insufficient.
As a predicate to approving a wiretap application, a judge must determine that "normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed or to be too dangerous." 18 U.S.C. § 2518(3)(c). This is far from an insurmountable hurdle. The government must demonstrate only that normal investigative techniques would prove difficult. It need not show that any other option would be doomed to failure. As the Second Circuit has explained:
"the purpose of the statutory requirements is not to preclude resort to electronic surveillance until after all other possible means of investigation have been exhausted by investigative agents; rather, they only require that the agents inform the authorizing judicial officer of the nature and progress of the investigation and of the difficulties inherent in the use of normal law enforcement methods." United States v. Torres, 901 F.2d 205, 231 (2d Cir.), cert. denied, 498 U.S. 906 (1990).
"A reasoned explanation, grounded in the facts of the case, and which `squares with common sense, is all that is required.'" United States v. Ianiello, 621 F. Supp. 1455, 1465 (S.D.N.Y.), aff'd 808 F.2d 184 (2d Cir. 1985) (quoting United States v. Shipp, 578 F. Supp. 980, 989 (S.D.N.Y. 1984) (Weinfeld, J.), aff'd sub nom. United States v. Wilkinson, 754 F.2d 1427 (2d Cir.), cert denied, 472 U.S. 1019 (1985)). Additionally, like the issuing judge's determination of probable cause, a determination that the government has made this showing is entitled to substantial deference from a reviewing court. See id.
Herrera claims that the government's affidavit failed to make this showing because the government had alternative methods with which to investigate the alleged conspiracy. He contends that the government's claim that it had used all available means of investigation was mere boilerplate that was insufficient to satisfy the requirements of the statute.
Herrera's argument incorrectly assumes that the purpose of the wiretap was only to obtain evidence of the sort that the government had succeeded in obtaining through the efforts of CW-1, surveillance, and other measures used with limited success. The wiretap, however, was sought and authorized in order to allow law enforcement officers to intercept conversations thought necessary to explore matters that the government had not succeeded in investigating through the available means. These included Herrera's sources of supply, the locations used by Herrera and others to receive and store drugs and money, the identities of most of Herrera's co-conspirators and customers, and the manner in which trafficking proceeds were disposed of. A probable cause showing was made to justify such interceptions. The alternative methods that Herrera proposes were not likely to have been productive in those regards. The wiretap application was necessary so that this investigative aim could be achieved, and no other technique would have served the same purpose.
Herrera's attack on the form of the government's affidavit is equally unavailing. The affidavit describes with specificity a number of other possible techniques that the government might have employed in its efforts and why those techniques probably would not have been effective. It may have been similar in this respect to affidavits presented in support of other applications, but that similarity did not render its language ineffective. It should come as no surprise that the facts supporting the conclusion that the alternative methods would be unavailing often are similar from one narcotics operation to another.
Conclusion Defendant Herrera's motion is denied in all respects.
SO ORDERED.