United States v. Sexto
1:06-cr-00284 | W.D.N.Y. | Jun 3, 2008
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_____________________________________
UNITED STATES OF AMERICA,
Plaintiff,
v. 06-CR-284S
JOSE LAO,
Defendant.
_____________________________________
REPORT, RECOMMENDATION AND ORDER
This case was referred to the undersigned by the Hon. William M. Skretny
in accordance with 28 U.S.C. § 636(b)(1) for all pretrial matters and hear and report
upon dispositive motions.
PRELIMINARY STATEMENT
The defendant, Jose Lao, (“the defendant”) is charged in a Superseding
Indictment with having violated Title 21 U.S.C. §§ 846 (Count 1). (Docket #128). There
are nine other co-defendants similarly charged, some of whom are also charged with
having violated Title 21 U.S.C. §§ 841(A)(1) and 841(b)(1)(B) and Title 18 U.S.C. § 2.
(Docket #128).
The defendant has filed a motion to suppress the use of evidence at trial
that was obtained from the use of wire intercept orders issued by the Hon. William M.
Skretny on October 25, November 23 and December 8, 2005 claiming that “there was
Case 1:06-cr-00284-WMS Document 217 Filed 06/03/08 Page 2 of 11
no probable cause to issue eavesdropping warrants” and there was a lacking of
“necessity” to warrant the use of wire interceptions. The defendant also argues that
“the interception of electronic communications were not minimized and particularized to
comply with the requirements of federal law governing the interception of electronic
communications.” (Docket #136, ¶¶ 57-67).
The government has filed a response in opposition to the defendant’s motion.
(Docket #155).
Each of the defendant’s claims will be separately addressed herein.
DISCUSSION AND ANALYSIS
The facts set forth in this Court’s Report, Recommendation and Order dated
April 28, 2008 (Docket #198) are hereby incorporated by reference since the defendant
participated in the evidentiary hearing upon which these facts are based and there is no
need to restate them herein for purposes of addressing the defendant’s motion to
suppress evidence.
(1) The Probable Cause Issue.
As the Second Circuit Court of Appeals has stated, “the standard for
probable cause applicable to [18 U.S.C.] § 2518 is ‘the same as the standard for a
regular search warrant. Under Illinois v. Gates, 462 U.S. 213" date_filed="1983-06-08" court="SCOTUS" case_name="Illinois v. Gates">462 U.S. 213, 103 S.Ct. 2317, 76
L.Ed.2d 527 (1983), probable cause for a search warrant is established if the totality-of-
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the-circumstances’ indicate a probability of criminal activity. See id. at 230-32, 103
S.Ct. 2317.” United States v. Diaz, 176 F.3d 52" date_filed="1999-05-04" court="2d Cir." case_name="United States v. Jose Diaz">176 F.3d 52, 110 (2d Cir.) cert. denied by Rivera v.
United States, 528 U.S. 875" date_filed="1999-10-04" court="SCOTUS" case_name="Rivera v. United States">528 U.S. 875 (1999).
Basically, the defendant is requesting that a review of Judge Skretny’s
decision in issuing the Intercept Orders of October 25, November 23 and December 8,
2005 be made so as to conclude that such orders were improperly issued. The role of
this Court in conducting such a review is no different than that conducted by a court of
appeals and therefore, the admonition of the Second Circuit Court of Appeals is
appropriately applied in this process wherein the Court stated:
“In reviewing a ruling on a motion to suppress wiretap
evidence, we accord deference to the district court.” Miller,
116 F.3d at 663 (quoting Torres, 901 F.2d at 231). Our role
in reviewing the issuance of a wiretap order is not to make a
de novo determination of the sufficiency of the applications,
“but to decide if the facts set forth in the application were
minimally adequate to support the determination that was
made.” Id.
United States v. Diaz, 176 F.3d 52" date_filed="1999-05-04" court="2d Cir." case_name="United States v. Jose Diaz">176 F.3d 52, 109 (2d Cir.), cert. denied by Rivera v. United
States, 528 U.S. 875" date_filed="1999-10-04" court="SCOTUS" case_name="Rivera v. United States">528 U.S. 875 (1999).
The defendant merely sets forth a conclusory claim that the contents of
the affidavit of S.A. Yervelli, sworn to October 25, 2005, fails to put forth anything of
substance to support a finding of probable cause for the issuance of the order of
October 25, 2005. He does the same with respect to the use of confidential informants
as a basis for establishing probable cause by merely asserting that they “were
inherently unreliable and suspect.” (Docket #136, ¶¶ 57-59). He offers nothing further
on the issue of probable cause as to the intercept orders of November 23 and
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December 8, 2005.
As the Court of Appeals for the Second Circuit stated:
A plaintiff who argues that a warrant was issued on less than
probable cause faces a heavy burden. “Where [the]
circumstances are detailed, where reason for crediting the
source of the information is given, and when a magistrate has
found probable cause, the courts should not invalidate the
warrant by interpreting the affidavit in a hypertechnical, rather
than a commonsense, manner. . . . [T]he resolution of doubtful
or marginal cases in this area should be largely determined by
the preference to be accorded to warrants.” United States v.
Ventresca, 380 U.S. 102" date_filed="1965-03-01" court="SCOTUS" case_name="United States v. Ventresca">380 U.S. 102, 109, 85 S.Ct. 741, 746, 13 L.Ed.2d
684 (1965). In particular, where the officer requesting the
search warrant relies on an informant, the magistrate’s role is
to examine the totality of the circumstances and to
make a practical, commonsense decision
whether, given all the circumstances set forth in
the affidavit before him, including the “veracity”
and “basis of knowledge” of persons supplying
hearsay information, there is a fair probability
that contraband or evidence of a crime will be
found in a particular place. And the duty of a
reviewing court is simply to ensure that the
magistrate had a “substantial basis for . . .
conclud[ing]” that probable cause existed.
Illinois v. Gates, 462 U.S. 213" date_filed="1983-06-08" court="SCOTUS" case_name="Illinois v. Gates">462 U.S. 213, 238-39, 103 S. Ct. 2317" date_filed="1983-06-08" court="SCOTUS" case_name="Illinois v. Gates">103 S.Ct. 2317, 2332,
76 L. Ed. 2d 527" date_filed="1983-06-08" court="SCOTUS" case_name="Illinois v. Gates">76 L.Ed.2d 527 (1983) (quoting Jones v. United States, 362
U.S. 257, 271, 80 S. Ct. 725" date_filed="1960-03-28" court="SCOTUS" case_name="Jones v. United States">80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960)); see
United States v. Feliz-Cordero, 859 F.2d 250" date_filed="1988-10-11" court="2d Cir." case_name="United States v. Jorge Feliz-Cordero and Alexander Feliz-Encarnacion">859 F.2d 250, 252-53 (2d Cir.
1988).
Rivera v. United States, 928 F.2d 592" date_filed="1991-03-21" court="2d Cir." case_name="Maria Rivera v. United States United States Department of Justice Drug Enforcement Administration Various Named Officers">928 F.2d 592, 602 (2d Cir. 1991).
The defendant has failed to meet his burden in this regard. The ninety-
five (95) typewritten page affidavit of S.A. Yervelli sworn to October 25, 2005 sets forth
in great detail, the circumstances of the investigation as well as the information
obtained to date from confidential sources, authorized state intercept orders and
physical surveillance. As a result, it is hereby RECOMMENDED that defendant’s
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motion to suppress the evidence obtained by use of the intercept orders of October 25,
November 23 and December 8, 2005 be DENIED.
(2) The Necessity Issue.
The defendant argues that the conclusory statements and the necessity
aspect of the applications were insufficient to allow the agents to utilize eavesdropping
in this instance and therefore, the evidence obtained by use of such intercept orders
should be suppressed. (Docket #136, ¶ 64).
The eavesdropping application and supporting affidavit of S.A. Yervelli of
October 25, 2005 did contain a detailed factual explanation of the traditional
investigative techniques that were used, including “the use of confidential sources,
controlled evidence purchases of illegal drugs, the attempted introduction of an
undercover officer, search warrants, pen registers, review of telephone toll records,
interviews and physical surveillance.” (Emphasis added) (Government Exhibit 1, p.
77). A detailed description was also given of those investigative techniques
“considered, but not deemed likely to succeed” and the reasons for such belief.
(Government Exhibit 1, pp. 77-92).
There is no requirement that all traditional law enforcement investigative
techniques be exhausted prior to applying for a wire interception order. United States v.
Diaz, 176 F.3d 52" date_filed="1999-05-04" court="2d Cir." case_name="United States v. Jose Diaz">176 F.3d 52, 111 (2d Cir.) cert. denied by Rivera v. United States, 528 U.S. 875" date_filed="1999-10-04" court="SCOTUS" case_name="Rivera v. United States">528 U.S. 875
(1999). Nor is there any requirement “that any particular investigative procedures
[must] be exhausted before a wiretap may be authorized.” United States v. Miller, 116
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F.3d 641, 663 (2d Cir. 1997), cert. denied, 524 U.S. 905" date_filed="1998-06-01" court="SCOTUS" case_name="Padilla-Pena v. United States">524 U.S. 905 (1998); United States v.
Young, 882 F.2d 1234, 1237 (2d Cir. 1987).
Since the holding in United States v. Torres, 901 F.2d 205" date_filed="1990-04-03" court="2d Cir." case_name="United States v. Victor Torres">901 F.2d 205 (2d Cir.), cert.
denied 498 U.S. 906" date_filed="1990-10-09" court="SCOTUS" case_name="Crossfield v. United States">498 U.S. 906 (1990), addresses the issues raised by the defendant herein on
the issue of whether 18 U.S.C. § 2518(1)(c) was complied with, it is worthwhile to
sacrifice brevity and set forth that Court’s ruling in detail.
Section 2518(1)(c) requires that an application for such an
interception shall include “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. . . .” Similarly,
section 2518(3)(c) requires the judge to whom an application
for a wiretap is made to determine, as a condition of
authorizing the tap, that “normal investigative procedures
have been tried and have failed or reasonably appear to be
unlikely to succeed if tried or to be too dangerous. . . .”
The application for the wiretap in this case was based upon
a thirty-six page affidavit by DEA agent Timothy J. Sullivan
dated May 27, 1987. Flores contends that when the
application for a wiretap was made, traditional law
enforcement methods had already achieved “extraordinary
success . . . in penetrating the deepest reaches of the
Torres Organization,” and that the “affidavit utterly failed to
establish, even on a superficial level, that less intrusive
techniques had not been successful and could not be
successful.” In advancing this position, Flores points out
that our decision in United States v. Lilla, 699 F.2d 99" date_filed="1983-01-27" court="2d Cir." case_name="United States v. Michael Lilla">699 F.2d 99 (2d
Cir. 1983), precludes the authorization of wiretaps based
upon “generalized and conclusory statements that other
investigative procedures would prove unsuccessful,” id. at
104. Flores also argues that it does not suffice to show that
a case belongs to some general class of cases which
require wiretap investigation, citing United States v.
Kalustian, 529 F.2d 585" date_filed="1976-03-25" court="9th Cir." case_name="United States v. Kale Kalustian">529 F.2d 585, 589 (9th Cir. 1975) (gambling case).
We are unpersuaded, and conclude that the application in
this case provided a sufficient basis for authorizing the
Flores wiretap. Section 2518 “is simply designed to assure
that wiretapping is not resorted to in situations where
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traditional investigative techniques would suffice to expose
the crime.” United States v. Kahn, 415 U.S. 143" date_filed="1974-02-20" court="SCOTUS" case_name="United States v. Kahn">415 U.S. 143, 153 n. 12,
94 S. Ct. 977" date_filed="1974-02-20" court="SCOTUS" case_name="United States v. Kahn">94 S.Ct. 977, 983 n. 12, 39 L. Ed. 2d 225" date_filed="1974-02-20" court="SCOTUS" case_name="United States v. Kahn">39 L.Ed.2d 225 (1974). As we have
stated:
“[T]he 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. Vazquez, 605 F.2d 1269" date_filed="1979-08-24" court="2d Cir." case_name="United States v. Antonio Cruz Vazquez, Benito Luis Cortina, Antonio Gonzalez, Andres Rene Rappard, and Jose De La Fe-Quintas">605 F.2d 1269, 1282 (2d Cir.
1979) (quoting United States v. Hinton, 543 F.2d 1002" date_filed="1977-01-17" court="2d Cir." case_name="United States v. Barbara Hinton">543 F.2d 1002, 1011
(2d Cir.), cert. denied, 429 U.S. 980" date_filed="1976-11-29" court="SCOTUS" case_name="Lowe v. City of Jackson">429 U.S. 980, 97 S. Ct. 493" date_filed="1976-11-29" court="SCOTUS" case_name="Borrayo v. United States">97 S.Ct. 493, 50
L.Ed.2d 589 (1976)), cert. denied, 444 U.S. 981" date_filed="1979-12-03" court="SCOTUS" case_name="Sousa v. United States">444 U.S. 981, 100 S.Ct.
484, 62 L. Ed. 2d 408" date_filed="1979-12-03" court="SCOTUS" case_name="Sousa v. United States">62 L.Ed.2d 408 (1979), 1019, 100 S. Ct. 674" date_filed="1980-01-07" court="SCOTUS" case_name="Perry v. United States">100 S.Ct. 674, 62
L.Ed.2d 649 (1980); see also United States v. Fury, 554
F.2d 522, 530 (2d Cir), cert. denied, 433 U.S. 910" date_filed="1997-06-27" court="SCOTUS" case_name="Lex Tex Ltd., Inc. v. Universal Textured Yarns, Inc.">433 U.S. 910, 97 S.Ct.
2978, 53 L. Ed. 2d 1095" date_filed="1977-06-27" court="SCOTUS" case_name="Dawkins v. Nabisco, Inc.">53 L.Ed.2d 1095 (1977).
The role of an appeals court in reviewing the issuance of a
wiretap order, furthermore, “is not to make a de novo
determination of sufficiency as if it were a district judge, but
to decide if the facts set forth in the application were
minimally adequate to support the determination that was
made.” United States v. Scibelli, 549 F.2d 222" date_filed="1977-01-31" court="1st Cir." case_name="United States v. Francesco Scibelli">549 F.2d 222, 226 (1st Cir.)
(collecting cases), cert. denied, 431 U.S. 960" date_filed="1977-06-06" court="SCOTUS" case_name="Woodkins v. Texas">431 U.S. 960, 97 S. Ct. 2687" date_filed="1977-06-06" court="SCOTUS" case_name="Alabama v. Cantrell">97 S.Ct. 2687,
53 L.Ed.2d 278 (1977). And, as the Scibelli court went on to
say:
[I]n determining the sufficiency of the
application a reviewing court must test it in a
practical and common sense manner. The
legislative history makes clear that section
2518(1)(c) is not designed to force the
Government to have exhausted all “other
investigative procedures”.
“The judgment [of the district
judge] would involve a
consideration of all the facts and
circumstances. Normal
investigative procedure would
include, for example, standard
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visual or aural surveillance
techniques by law enforcement
officers, general questioning or
interrogation under an immunity
grant, use of regular search
warrants, and the infiltration of
conspiratorial groups by
undercover agents or informants.
Merely because a normal
investigative technique is
theoretically possible, it does not
follow that it is likely. What the
provision envisions is that the
showing be tested in a practical
and commonsense fashion.
S.Rep. No. 1097, 90th Cong., 2d Sess., 1968
U.S.Code Cong. & Admin.News, p. 2190
(citations omitted).
Scibelli, 549 F.2d 222" date_filed="1977-01-31" court="1st Cir." case_name="United States v. Francesco Scibelli">549 F.2d at 226.
Id. at 231-232) (brackets included); See also United States v. Diaz, 176 F.3d 52" date_filed="1999-05-04" court="2d Cir." case_name="United States v. Jose Diaz">176 F.3d 52, 111
(2d Cir.), cert. denied by Rivera v. United States, 528 U.S. 875" date_filed="1999-10-04" court="SCOTUS" case_name="Rivera v. United States">528 U.S. 875 (1999).
Giving proper deference to Judge Skretny’s review and acceptance of the
ninety-five (95) page affidavit of Special Agent Yervelli sworn to October 25, 2005 in
support of the application for the Intercept Orders and his decision to grant said
applications and issue the orders in question, it is concluded that Judge Skretny
“properly found that conventional investigative techniques had been exhausted and that
alternatives to wire interception would be unlikely to succeed or would be too
dangerous.” Id. at 111. Therefore, it is RECOMMENDED that defendant’s motion to
suppress based on this claim be DENIED.
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(3) The “Minimization” Issue.
18 U.S.C. § 2518(5) provides that the “authorization to intercept . . . shall
be conducted in such a way as to minimize the interception of communications not
otherwise subject to interception under this chapter . . ..”
Defendant’s counsel merely speculates that the “minimization”
requirements of the statute may not have been complied with. (Docket #136, ¶ 63). As
a result, his argument is rejected at this point in time. Nevertheless, for purposes of
judicial economy, the holding of the United States Supreme Court on this issue is
beneficial and is therefore, set forth herein.
In addressing this complex concept of “minimization,” the United States
Supreme Court has held that:
The statute does not forbid the interception of all
nonrelevant conversations, but rather instructs the agents to
conduct the surveillance in such a manner as to “minimize”
the interception of such conversations. Whether the agents
have in fact conducted the wiretap in such a manner will
depend on the facts and circumstances of each case.
We agree with the Court of Appeals that blind reliance on
the percentage of nonpertinent calls intercepted is not a sure
guide to the correct answer. Such percentages may provide
assistance, but there are surely cases, such as the one at
bar, where the percentage of nonpertinent calls is relatively
high and yet their interception was still reasonable. The
reasons for this may be many. Many of the nonpertinent
calls may have been very short. Others may have been
one-time only calls. Still other calls may have been
ambiguous in nature or apparently involved guarded or
coded language. In all these circumstances agents can
hardly be expected to know that the calls are not pertinent
prior to their termination.
In determining whether the agents properly minimized, it is
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also important to consider the circumstances of the wiretap.
For example, when the investigation is focusing on what is
thought to be a widespread conspiracy more extensive
surveillance may be justified in an attempt to determine the
precise scope of the enterprise. And it is possible that many
more of the conversations will be permissibly interceptable
because they will involve one or more of the co-conspirators.
...
Other factors may also play a significant part in a particular
case. For example, it may be important to determine at
exactly what point during the authorized period the
interception was made. During the early stages of
surveillance the agents may be forced to intercept all calls to
establish categories of nonpertinent calls which will not be
intercepted thereafter. Interception of those same types of
calls might be unreasonable later on, however, once the
nonpertinent categories have been established and it is
clear that this particular conversation is of that type. Other
situations may arise where patterns of nonpertinent calls do
not appear. In these circumstances it may not be
unreasonable to intercept almost every short conversation
because the determination of relevancy cannot be made
before the call is completed.
Scott v. United States, 436 U.S. 128" date_filed="1978-06-26" court="SCOTUS" case_name="Scott v. United States">436 U.S. 128, 140-141 (1978); see also United States v.
Principe, 531 F.2d 1132" date_filed="1976-03-04" court="2d Cir." case_name="United States v. Ralph Principie">531 F.2d 1132, 1140 (2d Cir.), cert. denied 430 U.S. 905" date_filed="1977-02-28" court="SCOTUS" case_name="Ray v. Atlantic Richfield">430 U.S. 905 (1976).
It is therefore RECOMMENDED that defendant’s motion to suppress the
evidence on this issue be DENIED.
Therefore, it is hereby ORDERED pursuant to 28 U.S.C. § 636(b)(1) that:
This Report, Recommendation and Order be filed with the Clerk of the
Court.
ANY OBJECTIONS to this Report, Recommendation and Order must be
filed with the Clerk of this Court within ten (10) days after receipt of a copy of this
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Report, Recommendation and Order in accordance with the above statute, Fed. R.
Crim. P. 58(g)(2) and Local Rule 58.2.
The district judge will ordinarily refuse to consider de novo, arguments,
case law and/or evidentiary material which could have been, but were not presented to
the magistrate judge in the first instance. See, e.g., Patterson-Leitch Co., Inc. v.
Massachusetts Municipal Wholesale Electric Co., 840 F.2d 985" date_filed="1988-02-16" court="1st Cir." case_name="Paterson-Leitch Company, Inc. v. Massachusetts Municipal Wholesale Electric Company">840 F.2d 985 (1st Cir. 1988). Failure
to file objections within the specified time or to request an extension of such time
waives the right to appeal the District Judge's Order. Thomas v. Arn, 474 U.S. 140" date_filed="1986-01-27" court="SCOTUS" case_name="Thomas v. Arn">474 U.S. 140
(1985); Wesolek, et al. v. Canadair Ltd., et al., 838 F.2d 55" date_filed="1988-01-27" court="2d Cir." case_name="Janet Wesolek As Administratrix of The Estate of Chester Wesolek v. Canadair Limited">838 F.2d 55 (2d Cir. 1988).
The parties are reminded that, pursuant to Rule 58.2 of the Local Rules for
the Western District of New York, "written objections shall specifically identify the
portions of the proposed findings and recommendations to which objection is made and
the basis for such objection and shall be supported by legal authority." Failure to
comply with the provisions of Rule 58.2, or with the similar provisions of Rule 58.2
(concerning objections to a Magistrate Judge's Report, Recommendation and
Order), may result in the District Judge's refusal to consider the objection.
S/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge
DATED: Buffalo, New York
June 3, 2008
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