Opinion
Criminal Nos. 03-249(JAG), 03-250(PG), 03-251(HL), 03-252(DRD).
December 29, 2004
Lynn M. Doble-Salicrup, 03-249(JAG), 03-259(PG), 03-251(HL), 03-252(DRD), U.S. Attorney's Office, San Juan, PR, for Plaintiff or Petitioner.
Johnny Lazu-Rivera, 03-249(JAG), Luis R. Rivera-Rodriguez, Pedro Sotomayor-Trinidad, Gabriel Hernandez-Rivera, Jorge Martinez-Delgado, Francisco Acevedo-Padilla, Juan Enrique De-Aza, Fernando J. Carlo-Gorbea, Alex Nevarez-Sanchez, Rafael Anglada-Lopez, Felix Carlos, 03-250(PG), Peter John Porrata, Egipciaco-Figueroa, San Juan, PR, Abdiel Garcia-Milete, Ernesto Reyes-Blassino, Guaynabo, PR, Ramon Valdes-Diaz, Nicolas, Nogueras-Cartagena, San Juan, PR, Carlos Maisonet-Cotto, Jorge Manuel, Carmona-Rodriguez, Mercedita, PR, Eduardo Ramirez-Morales, Max Perez-Preston, Cond. Le Mans, Nelson Rivera-Garcia, Lydia Lizarribar-Buxo, Felix Rafael Egipciaco-Gustavo A. Del-Toro-Bermudez, 03-251(HL), Figueroa, Juan Diaz-Suazo, Max Perez-Preston, Cond. Le Mans, San Juan, PR, Damaso Martinez-Velez, Luis R. Lugo-Emanuelli, Fajardo, PR, Jorge Rosado-Rivera, Fernando J. Carlo-Gorbea, San Juan, PR, Jorge L. Rosado-Sierra, Lorenzo J. Palomares-Starbuck, Anibal Fernandez-Tavarez, David Ramos-Pagan, 03-252(DRD), Jose Agosto-Ramos, Michael Raymond Hasse, San Juan, PR, William Rivera-Baez, Francisco Valcarcel, Federal Public Defender's Office, Hato Rey, PR, Tamara Martinez-Hernandez, Alexander Zeno, San Juan, PR, Jorge Giraud-Rodriguez, Juan P. Rivera Roman, Ponce, PR, Angel Egipciaco-Perez, Carlos E. Beck, Guaynabo, PR, Carmelo Rodriguez-Soto, Hector A. Deliz, San Juan, PR, for Defendant or Respondent.
MAGISTRATE-JUDGE'S REPORT AND RECOMMENDATION
I. Procedural Background
On September 15, 2003, the Grand Jury issued four true bills charging numerous defendants with violations to Title 18 U.S.C. § 853 and Title 21 U.S.C. §§ 841, 843(b) and 846. Although separate indictments, in all cases, the Grand Jury charged a single conspiracy count against all named defendants.
The original indictments charged all defendants, in all four cases, for their participation "from on or about January 2002, up to and including the date of the indictment" (September 15, 2003, in an agreement or conspiracy "to distribute multi-kilograms quantities of controlled substances, that is, five (5) kilograms or more of cocaine . . . and one hundred (100) grams or more of heroin . . ." all in violation of Title 21 U.S.C. §§ 841(a) and 846. It was alleged that "to carry out the object of the conspiracy . . . (3) . . . co-conspirators would use cellular telephones and pagers to communicate with each other to further facilitate their drug trafficking activities." All indictments contain a forfeiture allegation. ( See: Criminal No. 03-249(JAG), Docket No. 2; Criminal No. 03-250(PG), Docket No. 2; Criminal No. 03-251(HL), Docket No. 2; Criminal No. 03-252(DRD), Docket No. 2.)
A First Superseding Indictment was rendered by the Grand Jury on November 18, 2003, in criminal cases 03-250(PG), Docket No. 59; 03-251(HL), Docket No. 37; 03-252(DRD), Docket No. 50. Within the superseding indictments the nature of the charges (a conspiracy drug distribution charge), as well as the objects and description of the manner through which the distribution conspiracy was achieved and promoted remained, in essence, unaltered. Within all indictments there are a series of overt acts outlined and alleged and its examination reveals that the crux of the government's evidence lies in telephone conversation recordings (Criminal No. 03-249(JAG), 11 overt acts; Criminal No. 03-250(PG), 10 overt acts; Criminal No. 03-251(HL), 11 overt acts; Criminal No. 03-252(DRD), 11 overt acts.)
The record reflects that the U.S. Attorney's Office did petition the U.S. Attorney General for authorization to file with the Court an application for a Title III interception of telephone 787-637-3419 (hereafter "Target No. 1). Upon having obtained said authorization, the U.S. Attorney's Office submitted on March 4, 2003, under seal, an application for authorization to intercept all communications of telephone 787-637-3419 (Miscellaneous Case No. 02-246(SEC), Docket No. 50). The District Court issued an Order on March 4, 2003, authorizing the Title III interceptions as requested ( Id. at Docket No. 51).
The record reflects that Progress Reports were submitted to the government on March 14, 2003, March 24, 2003, and April 3, 2003. Id. The government also pursued and on April 10, 2003, obtained the District Court's further authorization to continue the Title III interception of the above-listed telephone, previously authorized on March 4, 2003. A subsequent progress report due on April 18, 2003, was filed on April 21, 2003. Other reports were filed on April 29, 2003, and May 9, 2003 (Miscellaneous No. 02-246(SEC)).
The government also petitioned the U.S. Attorney General for authorization to move the District Court to authorize the interception of telephone 787-567-5131 (hereafter "Target No. 2"). Said request was submitted to the District Court on April 2, 2003 (Miscellaneous No. 02-246(SEC), Docket No. 91) and the District Court Order authorizing the Title III interception of Target No. 2 was issued on April 2, 2003 ( Id. at Docket No. 92). Progress Reports were also submitted by the government on April 18, 2003, April 28, 2003, May 9, 2003 (Miscellaneous No. 02-246(SEC)).
During the pretrial stages of these criminal cases, and after significant discovery had been conducted, the defendants alerted the trial court of their intent to challenge the validity and legality of the Title III interceptions and have all evidence obtained through said interceptions suppressed.
All four cases have been consolidated for the sole purpose of entertaining and ruling on the defendants' motions to suppress the Title III tapes. ( See: Criminal No. 03-251(HL), Docket No. 143: Consolidation Order.)
A. Criminal No. 03-249(JAG)
The record reflects that in this case the following defendants are charged:
1. Johnny Lazú-Rivera
2. Pedro Sotomayor-Trinidad
3. Jorge Martínez-Delgado
4. Jonathan González-Juan
5. Ricardo Guerrero-Durán
6. Juan Enrique De Aza
7. Alex Nevárez-Sánchez
8. Carlos Cruz-González
9. Ariel Ortiz-Rodríguez
The defendants who have moved for the suppression of evidence are: Johnny Lazú-Rivera (#1) ( id. at Docket Nos. 145 and 177); Jorge Martinez-Delgado (#3) ( id. at Docket No. 179); Juan Enrique De Aza-Rodríguez (# 6) ( id. at Docket Nos. 112 and 146); Pedro Sotomayor-Trinidad (# 2) ( id. at Docket No. 149); and Alex Nevárez-Sánchez (# 7) ( id. at Docket No. 175).
This motion, though filed after the due date set to move for suppression, is being considered. In his motion defendant "joins" arguments previously raised by his co-defendants without submitting legal memoranda.
B. Criminal No. 03-250(PG)
The seven defendants named herein are:
1. Félix Carlos Egipciaco-Figueroa
2. Luis A. Díaz-Andino
3. Abdiel García-Milete
4. Ramón Valdés-Díaz
5. Carlos Maisonet-Cotto
6. Eduardo Ramírez-Morales
7. Nelson Rivera-García
Of these, six (6) have challenged the admissibility of the Title III interceptions, namely: Félix Carlos Egipciaco-Figueroa (# 1) ( id. at Docket Nos. 154-155); Abdiel García-Milete (# 3) ( id. at Docket Nos. 153, 202); Ramón Valdés-Díaz (# 4) ( id. at Docket No. 162); Carlos Maisonet-Cotto (# 5) ( id. at Docket No. 157); Edwin Ramírez-Morales (# 6) ( id. at Docket Nos. 127, 131, 151, 152); and Nelson Rivera-García (#7) ( id. at Docket No. 203).
C. Criminal No. 03-251(HL)
The ten (10) defendants who appear charged in the above named case are:
1. Félix Rafael Egipciaco-Figueroa
2. Juan Díaz-Suazo
3. Ryan Pilate-Harrigan
4. Wilfredo Figueroa-Zapata
5. Dámaso Martínez-Vélez
6. Jorge Rosado-Rivera
7. Jorge L. Rosado-Sierra
8. Angel Fernández-Morales
9. Eliezer López-López
10. Jimmy Serrano
The following five (5) defendants have filed motions to suppress: Félix Rafael Egipciaco-Figueroa (#1) ( id. at Docket Nos. 154 and 197); Juan Díaz-Suazo (#2) ( id. at Docket Nos. 153, 156, 192); Dámaso Martínez-Vélez (# 5) ( id. at Docket Nos. 149, 201, 202); Jorge Rosado-Rivera (# 6) ( id. at Docket Nos. 148, 199); Jorge L. Rosado-Sierra (#7) ( id. at Docket Nos. 196 and 271).
Though co-defendants Angel Fernández-Morales (# 8), Ryan Pilate-Harrigan (#3) and Wilfredo Figueroa-Zapata (#4) have filed motions to join the motions for extension of time in which to move for suppression, filed by the co-defendants who intended to move for suppression, the record reflects these three co-defendants have not actually joined the motions to suppress (Criminal No. 03-251(HL), Docket Nos. 147, 151, 157).
Defendant Jorge Rosado-Rivera on May 21, 2004, also filed a Motion to Suppress evidence obtained by state police agents from his person and vehicle after an alleged illegal traffic stop (Criminal No. 03-251(HL), Docket No. 198). An evidentiary hearing on said motion was held on September 30, 2004. This motion was ruled upon by the presiding District Judge. ( Id. at Docket No. 274.)
D. Criminal No. 03-252(DRD)
The ten (10) defendants named in the above-cited case are:
1. Aníbal Fernández-Tavárez
2. Edwin Encarnación-Colón
3. José Agosto-Ramos
4. William Rivera-Báez
5. Tamara Martínez-Hernández
6. Jorge Girard-Rodríguez
7. Angel Egipciaco-Pérez
8. Pedro Acosta
9. Carmelo Rodríguez-Soto
10. Jorge Palomar-Bello
Co-defendants Aníbal Fernández-Tavárez (# 1) ( id. at Docket Nos. 132 and 212); José Agosto-Ramos (# 3) ( id. at Docket Nos. 120 and 210); Carmelo Rodríguez-Soto (# 9) ( id. at Docket No. 103; Angel Egipciaco-Pérez (# 7) ( id. at Docket No. 208); William Rivera-Báez (# 4) ( id. at Docket No. 209); Jorge Girard-Rodríguez (# 6) ( id. at Docket No. 213); and Tamara Martínez-Hernández (# 5) ( id. at Docket No. 214) have moved to suppress evidence arising from the Title III interception. Co-defendant Edwin Encarnación-Colón (#2), while acting pro se, has moved for the suppression of evidence and for leave to join the suppression motion filed by Félix Rafael Egipciaco-Figueroa.
The record reflects that co-defendant Edwin Encarnación-Colón is represented by Attorney Fernando Carlo (also counsel for defendants Juan De Aza-Rodríguez in Criminal No. 03-249(JAG) and Jorge Rosado-Rivera (#6) in Criminal No. 03-251(HL)). While Attorney Carlo had previously moved to compel discovery and asked for additional time in which to file a suppression motion on behalf of Encarnación-Colón, the latter has not been filed (Criminal No. 03-252(DRD), Docket Nos. 102 and 116). However, Attorney Carlo, on behalf of both defendants Rosado-Rivera and De-Aza Rodriguez, did file a Reply to the government's response to the motion to suppress (Criminal No. 03-249(JAG), Docket No. 164).
The government, represented by Assistant U.S. Attorney Lynn Doble, jointly considered the defendants' allegations and on June 22, 2004, filed a response to all their motions. ( See: Criminal No. 03-249(JAG), Docket No. 162; Criminal No. 03-250(PG), Docket No. 173; Criminal No. 03-251(HL), Docket No. 233; and Civil No. 03-252(DRD), Docket No. 176.)
On June 28, 2004, Attorney Fernando Carlo filed a Reply to the Government's Omnibus Response to the defendants' motions to suppress on behalf of defendants Juan De Aza-Rodríguez (Criminal 03-249(JAG), Docket No. 164) and Jorge Rosado-Rivera (Criminal No. 03-251(HL), Docket No. 236).
II. Factual Background and Legal Contentions
A. Requests for and Authorization for Title III Interceptions
1. Applications for Target Phone No. 1
On March 4, 2003, the government submitted an application for Title III interception of Target No. 1, which was granted by the District Court on that same date. The initial monitoring of outgoing and incoming calls from telephone 787-637-33419 was initiated on March 5, 2003, after the holding of a minimization conference. An extension of the time during which to conduct interceptions of Target No. 1 was authorized by the Court on April 10, 2003. The interception of Target No. 1, considering all extensions granted, concluded on May 9, 2003.
The original interception of Target No. 1 was authorized for the period of March 5, 2003, through April 3, 2003. The extension period began on April 9, 2003, and was to expire not later than May 9, 2003. Government progress reports also indicate that the interception was actually discontinued on May 8, 2003.
The record reflects that the government's affidavit in support of the Title III application specified that the interceptions were geared to unveil:
"(i) the identities and roles of accomplices, suppliers, aiders and abettors, co-conspirators, and other participants . . . (ii) location and source of resources used to finance their illegal activities; (iii) the location of narcotic processing laboratories; (iv) information pertaining to the delivery of heroin shipment to Puerto Rico from Colombia and other countries; (v) subsequent delivery of processed heroin to local heroin dealers as well as dealers outside Puerto Rico; (vi) time and dates for recovery of drug sales proceeds; (vii) the identities and roles of individuals receiving and distributing heroin locally; (viii) the firearms' storage location(s); the suppliers and identity and role of individuals providing firearms to the drug trafficking organization and its members."
Since Target No. 1 had voice mail capabilities, authorization was also sought to"
(a) monitor all messages recorded and/or retrieved;
(b) record background conversations intercepted in the vicinity;
(c) allow for the interception to "take place in any other jurisdiction within the United States" in the event of having Target No. 1 transferred outside the jurisdiction.
Within the affidavit it is indicated the investigation "is being conducted by the . . . (DEA) Caribbean Field Division, H.I.D.T.A. San Juan Initiative which includes the Puerto Rico Police Department (PRPD), the Immigration and Naturalization Service (INS) and the Bureau of Alcohol, Tobacco and Firearms." No civilian entities or individuals were identified as possible participants of the interception process, except for interpreters or "citizens fluent in Spanish, who will be under contract with the government and who, at all times, will be under direction and supervision of a suitable trained and experienced DEA agent . . . who are deputized as Special Federal Officers."
In regards to individuals suspected of criminal activity, the government identified six (6) suspects, to wit: Félix Rafael Egipciaco-Figueroa; Félix Carlos Egipciaco-Figueroa; William Rivera-Baez aka "Chino," Waldemar Rivera-Centeno, Roberto Vázquez-Tardaguila; and Leslie Miranda-Cruz.
Throughout the year 2002 the government successfully utilized two confidential sources. Confidential Source #1 ("CS #1") managed to keep the government abreast of Félix Rafael Egipciaco-Figueroa's illegal actitivies, the telephone numbers he utilized, arranged for drug purchases that were consequently recorded on audio and videotape, and enabled surveillance and consensual recordings of conversations held with the main target. As of April 2002, CS #1 had facilitated the participation in planned criminal activities of a DEA undercover agent. During these periods of time, several purchases of small quantities (1/8 kilogram) of heroin were conducted. Confidential Source #2 ("CS #2"), identified as an individual incarcerated on federal charges, though having provided historical information regarding the drug organization, remained unable to provide information on recent on-going illegal activities carried out by the organization.
The government in its affidavit further establishes that, although by May and June 2002 the sale of a pistol, a rifle and an AK-47 and some information was elicited regarding a recent importation of 14 kilos of cocaine, no specifics regarding its sources and their individual identification were elicited by CS #1. The role of CS #1 in the investigation is depicted as that of a "broker" and his last telephone conversation with Félix Rafael Egipciaco-Figueroa in Target No. 1 was on February 16, 2003.
Other investigation techniques utilized by the government (aside from the use of confidential sources, an undercover agent, audio and video recordings, consensual recordings) included the analysis of toll records for Target Phone No. 1, pen register information, use of track and trace devices and the review of other police reports and arrest records.
Pen register records reveal that Target No. 1 had made or received approximately 4,669 calls from November 26, 2002, through February 18, 2003. Progress reports filed by the government reflect that approximately 4,396 calls were intercepted.
At the time in which the Title III application was submitted the pen register and track and trace device were still operating. As a result the names of Orlando Ortiz-Colón, José Valentín-Almodóvar, William Rivera-Báez ("Chino"), Waldemar Rivera-Centeno and Roberto Vázquez were identified as possible suspects.
The government concedes that conventional investigative techniques, though partially successful, had resulted fruitless in unveiling the full organization's structure, its full range of activities, the identity of drugs and weapons sources out of Puerto Rico (United States mainland, Colombia), the identity and roles of other co-conspirators and location of stash houses or illegal proceeds.
In its attempt to satisfy statutory requirements, the government provided within a 48-page affidavit in support of Title III application a detailed account of all conventional investigative techniques, whether utilized or not, and how and why the same had proven either successful or unsuccessful in identifying the full scope of the organization, the conspiracy or the co-conspirators.
2. Extension/Continued Interception of Target Phone No. 1
On April 10, 2003, the government submitted yet a second affidavit in support of a request for a thirty (30) day continuation of the previously authorized interception of Target No. 1. The objectives of the continued interception remained the same previously outlined. The types of communications sought to be intercepted were similarly described, the law enforcement agents involved, the background information reliability and the possible use of conventional investigative techniques was similarly discussed and, in essence, continued to be the same.
Nonetheless, in this affidavit, among the individuals previously named as "target subjects," other individuals were, for the first time, identified as interceptees: Anibal Fernández-Tavárez, Wilfredo Zapata-Figueroa, Pedro Sotomayor-Trinidad and Carmelo Torres-Vargas.
At the time, investigation into the illegal activities of the Egipciaco-Figueroa organization was still on-going and being carried out by the use of confidential sources (CS #1 and CS #2), an undercover agent, physical and electronic surveillance, audio and video recordings, the use of pen registers and track and trace devices, consensual recordings and review of police reports and arrest records. Meanwhile, the use of search and arrest warrants, grand jury subpoenas, and trash searches had been discarded as mechanisms that would be too dangerous, of doubtful value or could jeopardize the investigation.
3. Application for Target Phone No. 2
While interception of Target No. 1 was on-going, on April 2, 2003, the government also sought the Court's authorization for intercepting a second telephone (787-567-5131) (hereafter "Target No. 2"), which is described as a cellular telephone with international mobile equipment, assigned to Margarita Torres-Ortiz but being utilized by Félix Rafael Egipciaco-Figueroa. Since Target No. 2 had voice mail capabilities, the government sought to intercept exactly the same type of communications as with Target Phone No. 1.
In its statement of probable cause, law enforcement agents do identify as new targets or interceptees: Wilfredo Figueroa-Zapata, Ramón Valdés-Díaz, Juan Enrique De Aza, Roberto Moctezuma-Rivera and "FNU LNU" aka "Macario." The objectives of and law enforcement agencies participating in the interception remain the same as for Target No. 1. In regards to the investigative methods utilized, the government outlined, once again, the reliability and use of the informant(s), an undercover DEA agent, and the results of the pen register and track and trace devices as well as the use of those other investigative techniques which would not appear feasible.
B. The Parties' Contentions
1. Co-Conspirators' Claims
Of the thirty-six (36) defendants charged within the consolidated cases, only 24 have moved for the suppression of Title III interceptions from Target No. One and Target No. Two. Of the latter, approximately seven (7) have submitted a coherent or specific challenge to the government's evidence. All others, in a vague, general and one-paragraph statement have limited themselves to join their co-conspirators' allegations.
See Criminal No. 03-249(JAG), Docket No. 146; Criminal No. 03-250(PG), Docket No. 162; Criminal No. 03-251(HL), Docket Nos. 197 and 202; Criminal No. 03-252(DRD), Docket No. 208.
The defendants' allegations can concisely be summarized as follows:
a. The affidavit in support of the Applications for wire interception did not establish the "necessity" requirement, inasmuch as conventional investigative techniques had proven successful.
b. The interception of Target No. 2 was not warranted, more so given the wealth of information generated by the interception of Target No. 1.
c. Interception of Target No. 2 exceeded the thirty (30) day statutory limit and was, thus, outside the authorized interception period.
d. Section 2518(4)(e) must be construed as requiring automatic termination upon interception of the first sought communication or the achievement of the interception's objectives.
e. The government failed to exercise caution while surveilling the interceptions and failed to minimize the recorded calls.
Defendant Félix Rafael Egipciaco-Figueroa asserts the government failed to provide the reviewing court a "full and complete" statement of the investigative steps undertaken and further failed to demonstrate said interception was necessary (Criminal No. 03-251(HL), Docket 197). This argument was joined, broadly by most co-conspirators and specifically discussed by Ramón Valdés-Díaz (Criminal No. 03-250(PG), Docket No. 162) and Angel Egipciaco-Pérez (Criminal No. 03-252(DRD), Docket No. 208). Defendant Egipciaco-Figueroa raised an additional ground for suppression asserting that the government had failed to provide Title III related discovery 10 days prior to trial. This contention has turned moot.
See Criminal No. 03-250(PG), Docket No. 162 at p. 6. This allegation is also joined by co-conspirators Dámaso Martínez-Valdés and Juan De Aza-Pérez (Criminal No. 03-249(JAG), Docket No. 146), who allege that the interception began on April 3, 2003, and was to expire on May 3, 2003, turning inadmissible those voice recordings made between May 3 and 5-7, 2003, that is, days after termination of the interception. Defendant De Aza-Perez moves for suppression of recordings identified as calls No. 1816 and 1819. Defendant Martínez-Valdés challenges admissibility of calls No. 1587, 1595, 1659, 1739, 1868, 1872, 1948 and 1994.
Criminal No. 03-249(JAG), Docket No. 146 at p. 5, motion by Juan De Aza-Pérez.
Co-conspirator Ramón Valdés-Díaz specifically alleges that from the approximately 42 telephone calls in which he was recorded, in at least 8 the government intercepted personal calls that concerned no illegal events. Valdés-Díaz specifically alludes to phone calls No. 8, 14, 65, 254, 600, 641, 1583 and 1655 (Criminal No. 03-250(PG), Docket No. 162).
2. Government's Response
While the United States acknowledges that those co-conspirators moving to suppress the Title III evidence do have standing, as aggrieved parties, it argues that defendants' claims are meritless. In essence, the government contends that the evidence proffered to the court satisfied the statutory requirements of probable cause and necessity and that the progress reports submitted to the Court which were also provided in discovery clearly indicate that the interception of Target No. 2 did not exceed the thirty (30) day maximum term authorized by statute and the Court. The government states, in regards to Target No. 1, that during the period of April 3, 2003, through April 7, 2003 (though phone calls were registered and numbered with No. 1-16), during those days "there was no connection or that a technical test took place," therefore, interception was initiated on April 9, 2003, at approximately 4:00 PM (Criminal No. 03-249(JAG), Docket No. 162).
It is to be noted that most defendants filed one or two-paragraph motions without specifically asserting their standing as aggrieved parties or the particular grounds upon which partial or total suppression of evidence is sought.
3. Defendants' Reply
Defendants Juan De Aza-Rodríguez and Jorge Rosado-Rivera were the only defendants who replied to the government's omnibus motion (Criminal No. 03-249(JAG), Docket 164). Defendants do contend that in regards to Target No. 1 the phone calls began to be numbered on April 3, 2003, the date from which the thirty (30) day interception period is to be counted, inasmuch as the government may not equate the term "30 days to intercept" with "30 days to record" were such events to begin on different dates. It is the defendants' contention that the thirty (30) day interception period elapsed by May 3, 2003, and did not conclude on May 9, 2003, as the government contends. Defendants base their allegations on the fact that, even though during the April 3 to April 7, 2003 period the government was experiencing technical problems with the Title III equipment, still, the eavesdropping "equipment was connected and activated, the personnel in charge was capable of identifying the calls, numbering them, registering them as outgoing calls, registered the time of the calls and summarized them." This, defendants assert, equates no more than to interception.
To depict and support their contentions, defendants allude to Call No. 2 generated from Target No. 1. Reportedly, the contents of such recording was "summarized" by a person named NERY on April 18, 2003, which means the call was "intercepted," recorded and later on summarized by the government (Criminal No. 03-249(JAG), Docket No. 164 at p. 3). Similarly, defendants claim the government intercepted and was able to summarize Calls No. 2 to 7.
The defense outlines that Special Agent Greg Calam's report dated April 21, 2003, indicates that a minimization conference was held on April 3, 2003, that technical problems were encountered on May 7, 2003, and that on May 8, 2003, interception was discontinued by the service provider (Cingular Wireless).
III. Legal Standard
A. In General
1. Sufficiency of the Application and Necessity Requirement
Under Chapter 119 of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended, the standards and procedures allowing for the interception of wiretaps and electronic communication are set forth. 18 U.S.C. §§ 2510-21. By placing statutory requirements on warrants authorizing wiretaps "extending beyond the constitutional minimum mandated for other search warrants," Congress has "sought to protect the privacy of wire and oral communications while, at the same time, authorizing the use of electronic surveillance evidence obtained by law enforcement under specified conditions." United States v. Nelson Rodríguez, 319 F.3d 12, 32 (1st Cir. 2003); United States v. López, 300 F.3d 46, 51 (1st Cir. 2002) citing Bartnicki v. Vopper, 532 U.S. 514 (2001). As such, the interception of electronic communications by law enforcement authorities is an extraordinary investigative technique which use "is to be distinctly the exception and not the rule." United States v. López, 300 F.3d 46 at 51; United States v. Hoffman, 832 F.2d 1299, 1306 (1st Cir. 1987). Given Congress' concern for preserving privacy, under Title III the government shall strictly adhere to statutory requirements and among other things is required to:
a. Seek approval from the U.S. Attorney General in order to apply to a federal judge for a wiretap order.
b. If consent is obtained, the law enforcement officer must submit to the district court a written application for a wiretap ( 18 U.S.C. § 2516(1)); and
c. Before issuing the wiretap, the district judge must determine the existence of certain enumerated factors and requirements to be in a position to issue an ex-parte order authorizing the wiretap. 18 U.S.C. § 2518(1), (3), (4).
In order to ensure that the government makes a reasonable, good faith effort to use other viable normal investigative techniques before resorting to the wire interception and to assure that Title III procedures remain the exception; law enforcement authorities seeking a wiretap warrant must submit a sworn affidavit, with a detailed proffer of:
a. The identity of the law enforcement officer making the application and the officer authorizing the application ( 18 U.S.C. § 2518(1)(a);
b. A full and complete statement of facts and circumstances making warranted issuance of the wiretap ( 18 U.S.C. § 2518(1)(b);
c. "A full and complete application statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be dangerous." ( 18 U.S.C. § 2518(1)(c)). See also: United States v. Kahn, 415 U.S. 143, 153 (1974); United States v. Hoffman, 832 F.2d 1299, 1306 (1st Cir. 1987).
d. A statement of the period of time for which the interception is required to be maintained ( 18 U.S.C. § 2518(1)(d);
e. A full and complete statement of the facts concerning all previous applications involving any of the same persons, facilities, or places specified in the application ( 18 U.S.C. § 2518(1)(e); and
f. Where the application is for the extension of an order, a statement setting forth the results thus far obtained from the interception, or a reasonable explanation of the failure to obtain such results. 18 U.S.C. § 2518(1)(f).
This may include details as to the particular offense, a description of the nature and facilities from which the communication is to be intercepted, type of communication to be intercepted and identity of the suspects or offenders. United States v. López, 300 F.3d at 51.
In this context, it is a well settled principle that the issuing judge's decision to grant a wiretap order is subject to review in two contexts. "First, the trial judge may consider a motion to suppress the evidence gathered by the wiretap that the issuing judge authorized; later, an appellate court may review the trial judge's suppression ruling." United States v. Nelson-Rodríguez, 319 F.3d 12, 32 (1st Cir. 2003) (citing United States v. Ashley, 876 F.2d 1069, 1074 (1st Cir. 1989)). In making this evaluation, a reviewing court is to examine the contents of the affidavit and decide if the "facts set forth in the application were minimally adequate to support" the decision of allowing for the electronic interception. United States v. Nelson-Rodríguez, 319 F.3d 12 at 32; United States v. López, 300 F.3d at 53 (citing United States v. Ashley, 876 F.2d 1069, 1074 (1st Cir. 1989)); United States v. Cole, 807 F.2d 262, 268 (1st Cir. 1986) (quoting United States v. Bynum, 763 F.2d 474, 476 (1st Cir. 1985)); United States v. Scibelli, 549 F.2d 222, 226 (1st Cir. 1977). This, however, does not impose upon the government an exhaustion requirement but rather requires the government to establish that it first made a "reasonable good faith effort" to utilize other available normal and less intrusive investigative techniques before resorting to a wiretap. United States v. López, 72 F.Supp.2d 5 (D.P.R. 1999) (D.J. Laffitte).
Under 18 U.S.C. § 2518(1)(c) normal investigative procedures are considered to include: standard visual and aerial surveillance; interrogation of witnesses or participants (including the use of grand juries and the granting of immunity); search warrants, infiltration by undercover agents, use of pen registers and trap and trace devices.
Law enforcement authorities will satisfy this requirement, if within the affidavit it is explained what investigative techniques have been utilized, which have proven successful and to what extent, which have proven or will result fruitless once attempted and whether the methods or techniques then or still in use, alone or combined with others not yet utilized, would likely fail to uncover the full extent of the conspiracy. United States v. Kahn, 415 U.S. 143, 153 (1974); United States v. Rivera-Rosario, 300 F.3d 1, 19 (1st Cir. 2002); United States v. Uribe, 890 F.2d 554 (1989); United States v. Hoffman, 832 F.2d 1299, 1306 (1st Cir. 1987).
In determining whether investigative techniques other than wiretaps could be effectively used and, thus, whether to authorize a wiretap, the judicial officer is entitled to consider the nature of the offense charge and/or the underlying illegal conduct ( United States v. Velázquez-Feliciano, 107 F.Supp.2d 134 (D.P.R. 2000) (D.J. Laffitte) while granting the government "latitude in choosing how best to continue the investigation." United States v. David, 940 F.2d 722, 728 (1st Cir. 1991). While assessing whether the government has made adequate and reasonable use of other investigative procedures, the court is not required to inquire nor is the government required to specifically indicate "the amount of time the investigators must try and fail, using other methods" before applying for a wiretap warrant or order. United States v. Nelson-Rodríguez, 319 F.3d at 33 (citing United States v. David, 940 F.2d at 729 (1st Cir. 1991)). Whether the government has diligently and in good faith deployed reasonable methods to uncover the identity of those engaged in criminal conduct is a factor, under the totality of circumstances and facts depicted, that the issuing judge will weigh. However, the evaluation on the sufficiency of the officer's affidavit in support of a Title III application should be made with practical "common sense." United States v. López, 72 F.Supp.2d 5 (D.P.R. 1999) (D.J. Laffitte). See also: United States v. Ashley, 876 F.2d at 1075; United States v. Abou-Saada, 785 F.2d 1, 11 (1st Cir. 1986).
Within this approach, the court must also consider and may also rely on the law enforcement agent's statements that are based upon his special training, knowledge and experience. United States v. Ashley, 876 F.2d at 1072; United States v. López, 72 F.Supp.2d 5 (D.P.R. 1999) (D.J. Laffitte); United States v. Montalvo, 882 F.Supp. 230 (D.P.R. 1995) (D.J. Laffitte); United States v. Rodriguez, 606 F.Supp. 1363, 1368 (D.Mass. 1985) (D.J. Caffrey).
2. Interception Period
Title 18 U.S.C. § 2518(5), in its pertinent part, specifically provides that:
No order entered under this section may authorize or approve the interception of any wire, oral, or electronic communication for any period longer than is necessary to achieve the objective of the authorization, nor in any event longer than thirty days. Such thirty-day period begins on the earlier of the day on which the investigative or law enforcement officer first begins to conduct an interception under the order or ten days after the order is entered.18 U.S.C. § 2518(5).
Generally speaking, statutory provisions make it clear that the term during which the order is valid begins to run on the date when the electronic surveillance begins (provided it may not begin after 10 days after the order is signed) not on the date when the order was signed. United States v. Villegas, No. 92CR699 (CSH), 1993 WL 535013 (S.D.N.Y. Dec. 22, 1993).
In regards to petitions for extension on such original applications the statute also provides that:
Extensions of an order may be granted, but only upon application for an extension made in accordance with subsection (1) of this section and the court making the findings required by subsection (3) of this section. The period of extension shall be no longer than the authorizing judge deems necessary to achieve the purposes for which it was granted and in no event for longer than thirty days. Every order and extension thereof shall contain a provision that the authorization to intercept shall be executed as soon as practicable, shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter, and must terminate upon attainment of the authorized objective, or in any event in thirty days.18 U.S.C. § 2518(5).
It appears that the enacting statute conveyed Congress' intent to have the length of wire interceptions determined in a case by case basis allowing for its termination, not necessarily on a predetermined calendar date, but when the objective of the authorization was achieved, and that each wiretap order issued would have a statutory life of thirty (30) maximum, regardless of whether the objective of the authorization has been achieved. However, the statute allows and recognizes that each interception would have the very real potential of earlier extinction. 18 U.S.C. §§ 2518(4)(e), (5), (6). There is no doubt that "judicial supervision and other protective procedures as outlined in statutes governing interceptions of wire and oral communications provide the reasonableness required by the Fourth Amendment of the U.S. Constitution." See: United States v. Cafero, 473 F.2d 489 (3rd Cir. 1973).
3. Minimization Requirement
Title 18 U.S.C. § 2518(5) reads as follows:
In the event the intercepted communication is in a code or foreign language, and an expert in that foreign language or code is not reasonably available during the interception period, minimization may be accomplished as soon as practicable after such interception. An interception under this chapter may be conducted in whole or in part by Government personnel, or by an individual operating under a contract with the Government, acting under the supervision of an investigative or law enforcement officer authorized to conduct the interception.18 U.S.C. § 2518(5).
Once again, within this statutory requirement Congress' intent to minimize invasion on an individual's privacy and life is served. In being compelled to comply with its obligation to minimize unauthorized communications, "the government is held to a standard of honest effort; inasmuch as perfection is usually not attainable and is certainly not legally required." United States v. López, 300 F.3d at 56 (1st Cir. 2003); United States v. Charles, 213 F.3d 10, 12 (1st Cir. 2000) (quoting United States v. Uribe, 890 F.2d 554, 557 (1st Cir. 1989)).
In evaluating and determining whether the government has kept its obligation "to minimize the interception of communications not otherwise subject to intervention" ( 18 U.S.C. § 2518(5)), courts will look into several factors, among this: (a) the nature and complexity of the matter under investigation or suspected crime; (b) the government's thoroughness in implementing precautionary measures to bring about minimization; and (c) the degree of judicial supervision over the surveillance process. Scott v. United States, 436 U.S. 128 (1978); United States v. London, 66 F.3d 1227, 1236 (1st Cir. 1995); United States v. Soto-Del Valle, 102 F.Supp.2d 57, 61 (D.P.R. 2000) (D.J. Fusté).
IV. Analysis
A. Standing and Need for an Evidentiary Hearing
Defendants have directly and indirectly alleged, and the government concedes, that all defendants do have standing to move to suppress the electronic interceptions and all derivative evidence. Thus, for purposes of this Report and Recommendation, it is considered that all defendants are aggrieved parties within the meaning of 18 U.S.C. § 2518(10)(a).
Section 2518(10)(a) defines the term "aggrieved person" as follows:
Any aggrieved person in any trial, hearing, or proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, a State, or a political subdivision thereof, may move to suppress the contents of any wire or oral communication intercepted pursuant to this chapter, or evidence derived therefrom, on the grounds that —
(i) the communication was unlawfully intercepted;
(ii) the order or authorization or approval under which it was intercepted is insufficient on its face; or
(iii) the interception was not made in conformity with the order of authorization or approval.
Having so determined, we now address some of the defendants' vague requests for an evidentiary hearing on their motions to suppress electronic interceptions. The Supreme Court in Franks v. Delaware, 438 U.S. 154 (1978) concluded that defendants are entitled to an opportunity to challenge the truthfulness of the allegations within affidavits supporting search warrants. However, to be entitled to challenge the predicate of said warrants, the defendants are required to make not a general but rather a "substantial showing that: (1) a statement in the affidavit was knowingly and intentionally false, or made with reckless disregard for the truth and (2) the falsehood was necessary to the finding of probable cause." United States v. Nelson-Rodríguez, 319 F.3d at 34 (1st Cir. 2003); United States v. Rivera-Rosario, 300 F.3d. at 20 (1st Cir. 2002); United States v. Charles, 213 F.3d at 13 (1st Cir. 2000); United States v. Soto-Del Valle, 102 F.Supp.2d 57 (D.P.R. 2000) (D.J. Fusté); United States v. López, 72 F.Supp.2d 5 (D.P.R. 1999) (D.J. Laffitte) ; United States v. Montalvo, 882 F.Supp. 230, 236 (D.P.R. 1995) (D.J. Laffitte).
In the case at bar, none of the defendants have alleged that the information within the affidavit submitted in support of a wire interception request is false or was otherwise made with reckless disregard for the truth. Neither have the defendants established that any information is missing or has been deliberately omitted from the affidavit. Rather, the defendants contend that the information submitted by the government, through the affidavit of Special Agent Greg Calam is vague, merely recites statutory language and did not support issuance of a wire interception order. In evaluating defendants' claim for an evidentiary hearing, the undersigned remains mindful of the fact that the substantial showing that must be made by the defendants is not a mere formality but rather a burden that must be carried out because "evidentiary hearings on motions in criminal cases are the exception, not the rule." United States v. Alicea, 205 F.3d 480, 487 (1st Cir. 2000).
Having examined the over broad, general allegations made by defendants, it is concluded that defendants have not met the requisites under Franks that would have otherwise entitled them to a pretrial evidentiary hearing.
Under this scenario, we move to consider the issues raised by defendants regarding the sufficiency of the affidavits, the necessity for electronic interception and to determine whether the government complied with the minimization requirements and did not exceed the statutory thirty (30) day maximum interception period. See: United States v. Abou-Saada, 785 F.2d 1 (1st Cir. 1986) ; United States v. López, 72 F.Supp.2d at 9 (D.P.R. 1999) (D.J. Laffitte). In so doing, judicial review of the wiretap affidavit "is limited to the four corners of the affidavit." United States v. Nelson-Rodríguez, 319 F.3d at 33 (1st Cir. 2003).
B. Sufficiency of the Application, Necessity Requirements
Under 18 U.S.C. § 2518(1)(c), within each application for an order authorizing or approving the interception of a wire, oral, or electronic communication, it is required to provide "a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous." This requisite has become known as the "necessity requirement" and "is designed to assure that wiretapping is not resorted to in situations where traditional investigative techniques would suffice to expose the crime." United States v. Lopez, 300 F.3d at 53 (citing United States v. Kahn, 415 U.S. 143, 153 (1974)). However, § 2518(1)(c) does not impose an exhaustion requirement upon the government.
In the case at bar, the defendants have raised several theories of how the government allegedly failed to make a complete and honest statement of facts. Having thoroughly examined each defendants' allegations and each of the three applications in support of Title III interception, the defendants' contentions are considered totally meritless.
The affidavits submitted in support of Title III discussed at length how and to what extent the government had successfully resorted to confidential sources (CS #1 and CS #2) and had contacted Félix Rafael Egipciaco-Figueroa through an undercover DEA agent and used pen registers and track and trace devices. The government also proffered having utilized surveillance that enable them to generate visual and consensual audio recordings of drug sales or purchases, conducted with Félix Rafael Egipciaco-Figueroa. Consensual recordings were generated with the assistance of CS #1 and historic information on the Egipciaco-Figueroa organization that was obtained through the assistance of CS # 2. These investigative techniques, although successful, did not, by themselves or combined, enable the government to decipher the role of some suspects already identified. It consisted mainly of evidence incriminating Félix Rafael Egipciaco-Figueroa but did not disclose the identity of his narcotics suppliers, his distributors, his contacts outside Puerto Rico, nor stash houses or structure of the entire organization. Actually, at the time the Title III applications were submitted the government was still utilizing and intended to continue use of pen registers, track and trace devices, confidential sources, investigation or examination of police reports and arrest records.
The government's affidavit also detailed the specific reasons why interception of wire communications was necessary. In particular, the government pointed to the fact that most of CS #1's interaction was held with the main target but proved unsuccessful in disclosing the suppliers' identity or the organization's structure. Having Félix Rafael Egipciaco-Figueroa arrested would "have resulted only in a small seizure of heroin" without allowing agents to identify other members of the organization. While CS #1 managed to get information on the murder of a key witness and bribery of an officer employed within a state superior court, these persons had not been positively identified. Thus, the interception of communication was deemed the only available technique with a reasonable likelihood of enabling identification of unknown co-conspirators and the "full scope of the conspiracy, as it pertains to the distribution of illegal drugs, illegal firearms and money laundering."
The government at length complied with the requisite of providing disclosure not only of other investigative techniques used and successful but provided also information on those that continued to be used and others that had proven unsuccessful or were not viable given safety concerns or the specific facts of the case. For example, CS #1 had now a limited radius of action, and having him going around questioning other co-conspirators on various aspects of the organization would have raised suspicions and even placed the CS's life in danger. Since CS #2 was in prison, the significance of his contribution had dramatically diminished. More so, the infiltration of an undercover agent was not successful at a higher level allowing for the identification of actual sources of narcotics supply.
Having investigated the organization for several months prior to applying for a Title III interception order, it was known and foreseen by government agents that the issuance of search warrants, interrogation of suspects or associates and the issuance of Grand Jury subpoenas would have served to alert the co-conspirators and jeopardize the investigation. In regards to Grand Jury subpoenas, the government indicated that at such an early stage of its investigation, it was not ready to grant immunity to any possible target and this action was just to trigger the Fifth Amendment claims by those subpoenaed by the Grand Jury. To the contrary, the government considered that wire interceptions were to allow for the identification of the locations in which large amounts of drugs or weapons were stored.
The defense bolsters its challenge to the wire interceptions by asserting that pen registers had proven an extremely useful tool. Nonetheless, considering the frequency with which co-conspirators changed their telephone numbers and providers; considering also that telephones and paging devices were commonly subscribed to other individuals rather that the ones really using the communication device; and considering that incoming calls could not be traced, the mechanism deprived the government of accurate information, of the possibility of identifying the nature of the conversations, distinguishing legitimate calls from those related to criminal activity and receiving timely information, inasmuch as pen register information is generally disclosed on a monthly basis.
Curiously enough, defendants would have rather compelled law enforcement agents to conduct physical surveillance for prolonged periods of time. However, physical surveillance would have left agents guessing as to the purpose of the targets' meetings. The government also proffered that conducting surveillance of the target locations in Canóvanas, Puerto Rico, had proven risky and difficult, more so, when surveillance cameras had been placed by the targets in residences where surveillance was to be maintained. Other residences were located within public housing projects or other high crime areas where law enforcement officers and persons not from the neighborhood would be easily detected.
The government indicated that Félix Rafael Egipciaco-Figueroa had placed surveillance cameras in his residence, located in Loiza, Puerto Rico. The cameras were "positioned to detect approaches to his residence," a fact that impeded physical surveillance and made trash searches not viable. Possibilities of trash searches were null given the fact that within public housing projects trash is placed in "community dumpsters" not allowing for the proper identification of the individual(s) possessing any given object located and seized through trash searches.
In view of the government's detailed description of the investigative efforts deployed, one may not conclude, as argued by defendants, that S/A Calam's affidavit is over broad or that it depicts a boilerplate recitation of statutory language. Actually, common sense dictates that in attempting to fulfill statutory requirements, government agents will closely adhere to those statutory requirements and will follow the pertinent statute's wording.
Nevertheless, upon examining S/A Greg Calam's affidavit, it is undeniable that the government stepped beyond those boundaries and fully justified the need for and the request for a wiretap order by demonstrating, in detail, the investigative efforts deployed before resorting to electronic surveillance.
It is widely recognized that the purpose of these "other investigative techniques' requirements is not to eliminate the possibility of electronic surveillance until every other imaginable investigative method is used and has proven fruitless." United States v. Rivera-Rosario, 300 F.3d 1 (1st Cir. 2002); United States v. López, 300 F.3d at 52 (1st Cir. 2002); United States v. David, 940 F.2d at 728-29 (1st Cir. 1999); United States v. Ashley, 876 F.2d at 1072 (1st Cir. 1989)
Defendants are to be mindful that what the court is required to decide is whether the facts set forth in the supporting affidavit (to the wire application) are "minimally adequate" to support the determination of having issued the interception order. United States v. Abou Saada, 785 F.2d at 13 (1st Cir. 1986); United States v. Villarman-Oviedo, 325 F.3d 1, 9 (1st Cir. 2003); United States v. Soto-Del Valle, 102 F.Supp.2d 57 (D.P.R. 2000) (D.J. Fusté). Having examined and having conducted a "common sense and practical" review of all three affidavits and wire applications, this question must be answered in the affirmative. In the present case, the government's affidavit easily meets the standard set in § 2518(1)(c).
Accordingly, the defendants' request for suppression of Title III evidence on the basis that the government failed to satisfy the § 2518(1)(c) necessity requirements should be DENIED.
C. Whether the Thirty (30) Day Interception Period Was Exceeded
1. Achievement of Objectives
Some of the defendants argue that interception needed to be concluded upon the government achieving the objective of the Title III authorization and that, as such, "the maximum length of time (up to 30 days) for which surveillance may be conducted pursuant to a single order must be distinguished from the termination directive under § 2518(5) which requires the officers to cease their surveillance once the authorized objective has been obtained." (Criminal No. 03-249(JAG), Docket No. 146 at p. 2.) Defendants bring into play the interpretation of §§ 2518(4) and (5).
The defendants' arguments fail on several grounds. First, the offense under investigation related to a drug conspiracy and a drug and firearms trafficking organization led by Félix Rafael Egipciaco-Figueroa and others not yet identified that had engaged in the continuous commission of related crimes. Being the offense(s) under investigation, continued in nature, this Court will be had pressed were there a need to determine "when the objectives of the Title III warrant" was actually achieved. Actually, the government proffers this organization and matter continues under investigation, a fact that has prompted the need to submit sanitized reports of investigations.
More so, when examining the 10-day reports submitted by the government, it can easily be ascertained that at the time the initial application for interception was submitted, and in spite of the frequency with which the main target changed his phone number, cellular phone No. 787-637-3419 was identified. At the time also, other investigative techniques utilized had identified for the government at least five (5) other individuals, in addition to the main target. On March 14, 2003, while submitting the first 10-day report, the government indicated the nicknames of at least seven (7) individuals who were still "in the process of being identified." When submitting the second progress report, dated March 24, 2003, the government reported having positively identified co-conspirators Wilfred Figueroa-Zapata and his role, Pedro Sotomayor, Carmelo Torres and others, whose dealings, as of said date, continue to be under investigation. In addition, during the same period of time the government successfully identified the location of a stash house and indicated that several others had been "tentatively identified" while others were "in the process" of being identified, inasmuch as either nicknames, first or last names were unknown. Further, review into the government's third report for Target No. 1 reveals that approximately six (6) other individuals had been positively identified two (2) of these still under investigation with their names redacted from the report) while four (4) others were in the process of being identified. It is also to be noted that at the time an individual's identity was established, not necessarily his role was determined.
It stands to logic that, even though the interception of Target No. 1 had proven successful, still there was a need to establish the location of other stash houses, individuals' identities and roles within the organization, assets or proceeds and the identity of the drug sources and suppliers. Actually, these were factors proffered by the government and considered by the Court in extending the period of interception for Target No. 1 and authorizing the interception of Target No. 2 on April 2, 2003.
In submitting its application for the continued interception of wire communication on Target No. 1, besides the individuals identified as targets of the initial application, the government now was able to identify as targets new subjects, such as: Aníbal Fernández-Tavárez, Wilfred Zapata-Figueroa, Pedro Sotomayor-Trinidad and Carmelo Torres-Vargas. The government also informed the Court about the interception of Target No. 2 (787-567-5131), a phone number subscribed or assigned to someone named Margarita Torres-Ortiz, which was being used by the main target.
In regards to the results of this continued interception, the role and identity of some individuals was tentatively ascertained and it was indicated that a "source of supply" and a "runner" for the main target were in the process of being identified. A similar scenario was reported during the second related report. This not only clearly depicts the ongoing nature of the ventures of the Félix Rafael Egipciaco-Figueroa's organization but clearly rebuts the defendants' contention that the objectives of the Title III interception orders were achieved upon the successful interception of the first or any subsequent telephone calls.
Notably, examination of the last report by the government, dated May 8, 2003, that relates to Target No. 2, clearly shows that the identity of several individuals, to include a "cocaine source supply . . . and a cocaine buyer/distributor . . . and a marihuana buyer" remained to be determined. More specifically, the government in no unclear terms, in S/A Greg Calam's report indicated: "However, the goals of the interception are yet to be met, including, identification of other sources of supply, other co-conspirators, additional locations of stash houses for narcotics, methods of importation of the narcotics, among others."
Finally, defendants' arguments are definitely disposed of and turned meritless by the Court's clear language in the wiretap Orders issued on March 4, 2003, April 2, 2003, and April 10, 2003, which clearly specifies that:
The interception of wire communications must terminate upon the attainment of the authorized objectives, or, in any event, at the end of thirty (30) days, measured from the day on which investigative or law enforcement officers first begin to conduct an interception pursuant to this Order, or ten (10) days after the Order is entered, which is earlier.
Miscellaneous No. 02-246(SEC), Docket Nos. 51, 83, 92.
Thus, the Court in considering the continuous nature of the offense under investigation and the information proffered by the government in its affidavit determined proper not to set a date for termination of the interception but to rather allow, if necessary, for the wire interception during the maximum 30-day period.
For the above stated reasons, the defendants' first challenge to the reasonableness of the "interception period" must fail.
2. Initiation of Interception
The second identifiable challenge to the reasonableness of the interception term is the one originally submitted by defendant Dámaso Martínez-Valdés (Criminal No. 03-251(HL), Docket No. 202), and later joined by others, by means of their reply to the government's "Omnibus Response to Motions to Suppress Title III Evidence" (Criminal No. 03-249(JAG), Docket No. 164 and Criminal No. 03-251(HL), Docket No. 236). Defendants assert that the wiretap Order for Target No. 2 was issued on April 2, 2003. The government does not contest this fact as it is clearly supported by the record (Miscellaneous No. 02-246(SEC), Docket No. 83). Defendant Martínez-Valdés contends that the interception actually began on April 3, 2003, as reflected by the government's Narrative Report (Attachment 2) and should have concluded by May 3, 2003, thus rendering subject to suppression any evidence or recordings gathered from May 4, 2003, until May 8, 2003, when the interception was reportedly discontinued by law enforcement agents.
While defendant identifies these calls as those numbered 1587, 1595, 1659, 1739, 1868, 1872, 1948 and 1994, he fails to provide the interception date for each, thus, now allowing for corroboration of said factual allegation.
The government responds that, although the interception order was issued on April 2, 2003, due to serious technical problems encountered by the provider, and which were notified to the Court on April 18, 2003, the interception did not begin until April 9, 2003, when the first conversation was recorded. This date, the government alleges, was the eighth day, the earliest date of the 10-day period upon signing of the interception order during which wire interception may be initiated. In support, the only case cited by the government is United States v. Martino, 664 F.2d 860 (2nd Cir. 1981) that purportedly stands for the proposition that there was no issue of "staleness," "especially when the government notified the District Court that there was in fact a delay in the implementation of the wiretap order and that it was exclusively caused by technical difficulties."
At the outset, reliance in the Martino case can be distinguished. A review of the factual scenario in Martino reveals that the wiretap order had been issued on May 28. On June 2, that is, five (5) calendar days later, the government notified to the Court that "due to a series of technical difficulties, no conversations were intercepted from May 28, 1980, to June 2, 1980. Those problems have been corrected and the interception is expected to commence today." First, it is to be noted that in the case at bar no issue of "staleness" of the information has been raised. Second, notice concerning the technical difficulties encountered by law enforcement agents was given to the Court upon conclusion of the first 10-day cycle and not immediately upon the technical problems being encountered by the provider. ( See: First Ten Day Report, Target Telephone 2, dated April 18, 2003, filed April 21, 2003.) Third, it appears from the government's notice that the interception had not been initiated.
The record reflects that the government's report was filed on April 21, 2003, given the fact that April 18, 2003, was a local holiday (Good Friday).
In the case at bar, defendants appear to question what is entailed in the "interception" of a targeted telephone. The defendants' proffer, based on the disclosed call logs and/or narrative reports, that the interception actually began on April 3, 2003, date in which an outgoing call from Target No. 2 was registered at 12:32:12 and was identified as Cell No. 0001. Actually, the government's narrative report for April 3, 2003, reads as follows:
(787)567-5131.001 04/03/03 Outgoing call at 12:32:12. Call No. 0001 No audio recorded by Voice Box No connection. Summarized by Gretchen
Similar subsequent entries are registered for the dates of April 3, April 7 at 9:34:08, Call No. 0004. Thereafter, eight similar calls are depicted, dated April 9, 2003, with an indication those were technical tests ("TECH TEST") carried out by either the provider or law enforcement agents.
There are no entries for the dates April 3 to April 6 nor April 8, 2003.
The defendants replied to the government's proffered technical problems by arguing that the fact there was no connection does not mean there was no interception. In support they argue that beginning on April 3, 2003, the outgoing calls were numbered, the date and time of the call is shown, the call is identified as an "outgoing" call and that individuals (presumably agents) devoted time to "summarize" the call which means it was intercepted and monitored though no recording of communication was held. Therefore, the defendants contend, for any evidence gathered after May 3, 2003 (30 days after signing of the interception order) to be admissible, the government needed to avail itself of a subsequent order authorizing the continued interception of Target No. 2.
Thus, it remains to be determined, within the factual scenario at hand, when the "interception" actually began. We first look for guidance within the statutory provisions of the "Omnibus Crime Control and Safety Streets Act: Chapter 119, Section 2510(4), which defines the term "intercept" as "the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device."
The term "aural transfer," as defined at § 2510(18), is the "transfer containing the human voice at any point between and including the point of origin and the point of reception."
In turn, the term "contents," when used with respect to any wire, oral or electronic communication, is defined in § 2510(8) to include "any information concerning the substance, purport, or meaning of that communication."
Still to examine the full scope of defendants' arguments, we must consider the definition of "electronic communication" provided under § 2510(12) which states:
(12) "electronic communication" means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by wire, radio, electromagnetic, photoelectronic or photooptical system that affects interstate commerce or foreign commerce, but does not include —
(A) any wire or oral communication;
(B) any communication made through a tone-only paging device;
(C) any communication from a tracking device (. . .);
(D) electronic funds transfer information . . .
In this case, it appears that from April 2, 2003 (issuance date of wiretap Order for Target No. 2) through April 9, 2003, no actual communications were recorded. Prior to that, the information gathered by the government, given the technical problems encountered by Singular Wireless, revealed that these were outgoing calls and the time of said calls (Attachment 2). However, at the same time, the government generated a "Calls Database Listing" (Attachment 1) that identified calls from and to the target phone (567-5131), that began to be registered on April 3, 2003. The Calls Database also provides information regarding the time of said call, the number dialed and the dialed state. This listing is provided for the period of time beginning on April 1, 2003, and ending on April 10, 2003.
Under Attachment 2, the first recorded communication appears identified under No. 0017, dated April 9, 2003 at 16:35:25. Prior to this, though the government had enabled itself of the equipment that would have allowed for the interception of communications, no access was granted by the phone company to actually allow for the interception of communications.
Twelve of these calls were identified as "incoming calls."
This is a day prior to and after the actual period in controversy (April 2, 2003).
Since the data gathered by the government between April 2 to April 9 actually amounts to the same data gathered by means such as pen registers and tracking devices, which are exempted from the term "electronic communication," and since the data gathered does not include "information concerning the substance, purport or meaning of that communication," any evidence or information so gathered by the government does not constitute an "intercept" under the definition provided in § 2510(4). That is to say that telephone traces or data which did not intercept "human voices" or observe the contents of dialogues or oral communications do not constitute "interceptions" of communications as defined under Chapter 119.
We may concur with the defendants while suggesting that the Calls Database provided in discovery (Attachments I and 2) appear to suggest that "interception" began on April 2, 2003. Actually, that is what the government intended. However, it has been proffered by the government that no such interception actually began until April 9, 2003, due to the fact that technical problems were encountered by the provider and the latter either refused or was unable to allow the government access to Target No. 2 until April 9, 2003.
See: U.S. Motion in Compliance with Order (Criminal No. 03-249(JAG), Docket No. 181; Criminal No. 03-150(PG), Docket No. 208; Criminal No. 03-251(HL), Docket No. 309; Criminal No. 03-252(HL), Docket No. 226).
Under this scenario it is noted that having the Court authorized the wiretap on April 2, 2003, initiation of the interception on April 9, 2003, was still valid under the statutory provisions that allows for initiation of interceptions upon the Court's signing of the order or within ten (10) days of such Order being entered.
Therefore, while defendants have asserted an argument that seems grounded in logic and common sense, it is not supported either by facts or applicable statutory provisions. Accordingly, defendants' second claim in support of suppression of Title III interception for the period of May 2 through May 9, 2003, is to be DENIED.
D. Minimization
The record reflects that while applying for an order authorizing the interception of wire communications occurring over Target Nos. 1 and 2, the government, through DEA S/A Greg Calam's affidavit, already acknowledges its duty to minimize interception of communications not related to criminal activity and propounded several methods, designed to achieve compliance with statutory requirements. For example, while agents from several law enforcement agencies were to participate and supervise the wire interception, DEA agents were to keep physical custody of the voice recordings. In addition, prior to initiation of the interception and recordings, all monitoring personnel were to be briefed as to the minimization requirement, were to read a memorandum and the Court Order depicting guidelines on the subject and were to sign a document with the minimization instructions. More so, the government outlined that before beginning the interception, meetings were to be held in order to review and discuss the minimization requirements and the situations in which all interceptions were to be suspended (i.e., when the named interceptees . . . are not participants, when determined that the conversation is not criminal in nature and does not relate to the offense(s) under investigation). The government further proffered, and has not been discredited, that it was to post a copy of the Court Orders and the "minimization memorandum" at the "listening site" and that the monitors of intercepted communication were to sign a "form" acknowledging having read the affidavit or application for interception. In turn, the government sought in advance and obtained a court authorization to "permit monitoring officers and interpreters to spot check minimized interceptions" and to enable "the services of interpreter(s) . . . for the duration of the interception as needed (if in a foreign or coded language)". The intercepted wire communications were to be recorded, the recordings were to be securely preserved with detailed logs depicting the time, date of the calls, particulars involved, subject of the call and "if and when the minimization occurred."
Attachment No. 2 at pp. 3-4, 31-38, 40-45, and Criminal No. 03-249(JAG), Docket No. 140, Criminal No. 03-250(PG), Docket No. 150, Criminal No. 03-251(HL), Docket No. 182, and Criminal No. 03-252(DRD), Docket No. 161.
Generally, it is considered the minimization requirements are met when there is no evidence of outrageous or systematic inappropriate or illegal behavior during the surveillance. United States v. Soto-Del Valle, 102 F. Supp.2d 57 (D.P.R. 2000) (D.J. Fusté).
In the case at bar only defendant Ramon Valdés-Díaz argues that "the government failed to minimize the recorded calls as required by Title III." In so arguing, defendant proffers there are approximately forty-two (42) recorded telephone conversations that specifically relate to him. Of these, defendant asserts there are eight (8) calls that were to be minimized and the government failed to adhere to statutory requirements. Purportedly, these calls do relate to personal conversations which contents ranged from plans to attend social events (a boxing match in the continental United States) and other personal matters (i.e., a Peruvian girl, the Tito Trinidad fight, a family trip to Mayaguez). Valdés-Díaz finally asserts that "these calls are a representative sample of those that were supposed to be minimized," inasmuch as "the number of improperly recorded telephone calls drastically increases in the overall number of calls, which is in excess of three thousand (3,000)."
These calls are related to Target No. 1 (787-637-3419) and are identified under Nos. 8, 14, 65, 254, 600, 641, 1583 and 1655.
In spite of his arguments, defendant Valdés-Díaz has failed to indicate, besides these eight (8) mentioned calls, in which other cases the government failed to uphold the minimization requirement.
Upon examining the interim report filed by the government in regards to both target phones, the same do reflect that from an approximate total of 2,420 calls that were intercepted, 453 were minimized (18.7%) and as to 771 (31.8%) there was a prompt determination that the subject matter of the calls were not pertinent and were not recorded. Thus, the government determined that a total of 1,224 calls (50.6%) were not pertinent to the Title III objectives and, as such, were miminal. As stated in United States v. López, "although blind reliance on the percentage of non-pertinent calls intercepted is not a sure guide to determining whether minimization was proper, the nearly flawless performance of the government in this case carries significant weight" (internal citations omitted), 300 F.3d at 57. See also: Scott v. United States, 436 U.S. 128, 140 (1978).
Inasmuch as some other co-conspirators have blindly and broadly "joined" motions filed by Valdés-Díaz, it must be noted that the same analysis stands correct for Target No. 2 from which approximately 1986 calls were intercepted, of which 294 (15.5%) were classified as minimized and 622 (32.8%) were non-pertinent. This equates to a total of 916 calls (48.3%) that were determined non-pertinent to the Title III objectives vis a vis a total of 649 calls in which these were actual voice recordings. More so, it is questionable whether an individual, in spite of having standing as an "aggrieved party" (§ 2510(11)), may move to suppress arguing the government's failure to minimize otherwise valid interceptions without first making a particular showing that such defendant had a privacy interest in the recorded conversations and/or phone. See: United States v. Gallo, 863 F.2d 185, 192 (2nd Cir. 1988); United States v. Fury, 554 F.2d 522, 526 (2nd Cir. 1977).
Defendant Valdés-Díaz contends that from 42 recorded calls, that do relate to him, 8 were not minimized although not subjected to the Title III warrant. First, it must be noted that defendant has not placed this Court in a position to evaluate the full content of those recorded conversations, thus, it is not clear whether any other subject was discussed, besides the one proffered by defendant. Second, Valdés-Díaz has failed to indicate whether any such recordings have been designated for use at trial by the government. Absent such intent from the government, there should be no other viable claim of prejudice available to defendant. See also: United States v. Bennett, 219 F.3d 1117, 1124 (9th Cir. 2000) (minimization requirement met where improperly intercepted calls accounted for only 3.65% of 7,322 total intercepted calls).
In the case at bar, for Target Nos. 1 and 2, the government intercepted an approximate total of 4,396 calls of which 2,040 (46.4%) were considered non-pertinent and were minimized. Even assuming the correctness of Valdés-Díaz's argument, 8 wrongly intercepted calls from the above total of 4,396 only account for 0.18%.
It is a clearly settled principle that the law does not require absolute compliance or "perfection" which is "usually not attainable" but rather statutory provisions do hold the government to a "standard of honest effort." Scott v. United States, 436 U.S. 128, 140 (1978) (holding that § 2518(5) does not forbid interception of all non-pertinent calls, but rather a reasonable effort to minimize them); United States v. Lopez, 300 F.3d at 57 (1st Cir. 2002); United States v. Charles, 213 F.3d at 22 (1st Cir. 2000); United States v. London, 66 F.3d 12, 27 (1st Cir. 1995); United States v. Uribe, 890 F.2d at 557 (1st Cir. 1989); United States v, Hoffman, 832 F.2d 1299 (1st Cir. 1987); United States v. Velázquez-Feliciano, 107 F.Supp.2d 134 (D.P.R. 2000) (D.J. Laffitte).
It is, therefore, concluded that the minimization procedure followed in this case was explicitly described in DEA S/A Calam's affidavit. The methodology outlined in said affidavit is considered sufficient and reasonable, and absent any showing to the contrary, it must be assumed that said procedure was followed. Under the totality of circumstances described throughout the ten (10) day reports, we may conclude that the government's efforts to comply with the minimization requirements were extremely reasonable; more so, if we were to consider the complexity and difficulties of such task vis a vis the widespread nature of the conspiracy, the continued use of coded language and jargons and the numerous and often very brief calls.
Accordingly, based on the above-stated reasoning, it is RECOMMENDED that the defendant's motion to suppress, to the extent it is premised in the government's failure to fulfill minimization requirements, be DENIED.
V. Conclusion
For the above-stated reasons, it is RECOMMENDED that the defendants' motions premised on the government's violation of:
§ 2518(1)(c) requirements and failure to establish the need for wire interception and resorting to other investigative techniques be DENIED;
§ 2518(4) and (5) for exceeding the maximum thirty (30) day interception period be DENIED; and
the minimization standards be DENIED.
This Report and Recommendation is filed pursuant to 28 U.S.C. § 636(b)(1)(B) and Rule 72(a) of the Local Rules of Court. Any objections to the same must be specific and must be filed with the Clerk of Court within ten (10) days of its receipt. Rule 72(d), Local Rules of Court; Fed.R.Civ.P. 72(b). Failure to timely file specific objections to the Report and Recommendation is a waiver of the right to review by the District Court. United States v. Valencia-Copete, 792 F.2d 4 (1st Cir. 1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980). The parties are advised that review of a Magistrate-Judge's Report and Recommendation by a District Judge does not necessarily confer entitlement as of right to a de novo hearing and does not permit consideration of issues not raised before the Magistrate-Judge. Paterson-Leitch v. Massachusetts Elec., 840 F.2d 985 (1st Cir. 1988).
SO RECOMMENDED.