2004 | Cited 0 times | D. Massachusetts | April 29, 2004


After an investigation spanning from February 2001 through August2002, the government charged the sixteen defendants in this case with aone count superceding indictment for conspiracy to distribute, and topossess with intent to distribute heroin, cocaine, cocaine base("crack"), and MDMA ("ecstasy"). The first phase of the investigation,lasting from March 2001 through May 2002, consisted of supervisedmeetings between a cooperating witness and the defendants, consensuallyrecorded telephone calls, controlled narcotics purchases, physicalsurveillance, review of public records (utility records, motor vehicleinformation), and telephone toll analysis of several of the defendants'phones. Although this phase of the investigation yielded the identitiesof key members of the drug organization; namely, the five Cepedabrothers, only three of its drug suppliers were identified, while fourothers were known just by nickname.

Because the investigating officers needed more information on theremaining four suppliers, the role of two of the Cepeda brothers, planneddrug deliveries, and disposition of the drug proceeds, the government applied forwiretap authorizations for the telephones of Domingo Cepeda and AparicioGutierrez-Sanchez.1 FBI Special Agent Dale Dutton filed a 98-pageaffidavit in support of the wiretap application. On June 17, 2002, thesame day that the application was filed, Chief Judge William Youngauthorized the wiretap for a 30-day period. Between June 18, 2002, andJuly 17, 2002, the government intercepted more than 4,000 phone calls onDomingo Cepeda's cell phone.

Defendants Nelson Cepeda and Jose Rivera each move to suppress theinterceptions on the grounds that the wiretap application did notestablish necessity or probable cause. Citing the same reasons, defendantDomingo Cepeda moves to join the motions. Defendant Jose Reina-Reyesrenews the necessity argument, and also argues that the government setoverly broad investigatory goals. Defendants Juan Patricio Metivier,William Torres,2 David Kardenetz, Christino Cepeda, Pedro Cepeda, andJose Cepeda join.3 Defendants also request a Frankshearing.

When reviewing a wiretap authorization, this Court must examine thesupporting affidavit to determine "if the facts set forth in theapplication were minimally adequate to support the determination that wasmade." United States v. Villarman-Oviedo, 325 F.3d 1, 9 (1stCir. 2003) (quotation and citation omitted). Title III of the OmnibusCrime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq.,requires each wiretap application, among other things, to show thenecessity for the wiretap by providing

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. . . .18 U.S.C. § 2518(1)(c). Its counterpart, Section2518(3)(c),4 requires a finding that "the government has used normaltechniques but it has encountered difficulties in penetrating a criminalenterprise or in gathering evidence-to the point where (given thestatutory preference for less intrusive techniques) wiretapping becomesreasonable." United States v. Abou-Saada, 785 F.2d 1, 11 (1stCir. 1986). The necessity requirement does not mandate exhaustion of allother investigative procedures nor their complete failure, but merelyinsures that wiretaps are not routinely used as the initial step incriminal investigations especially where traditional investigativetechniques would suffice. Id.

In arguing that the wiretap application or, more specifically, thatAgent Dutton's supporting affidavit, failed to establish necessity,defendants misunderstand the standard. Defendants contend that thegovernment could have gone further in their investigation, but thegovernment is not required to exhaust all avenues or show their failure.Defendants point out that many of the less intrusive investigatorytechniques were fruitful. However, they had run their course and wiretappingwas necessary according to Agent Dutton.

In explaining that the pre-wiretap investigation resulted in limitedsuccess, Agent Dutton stated that he was still seeking the trueidentities of the four suppliers who were known only by their nicknames,the large scale out-of-state suppliers, information on future drug sales,and money laundering activities. (Dutton Aff. ¶ 96). AcknowledgingCooperating Witness Number One's ("CW1") aid until this point, AgentDutton observed that despite CW1's close, longstanding relationship withthe defendants, they had been unwilling to disclose the identities oftheir out-of-state suppliers. He noted that CW1 `s contact with twosuppliers, Cotorre and Nene, was an aberration and occurred only becausehe happened to be there when they came by to pick up and drop off drugsand that he got a third supplier's contact information only by asking forit at a meeting. Because drug traffickers tend to maintain a separationbetween their major customers and insulate them from their suppliers,Agent Dutton predicted that CW1 would continue to be unable to identifythe out-of-state suppliers or future drug transactions. Furthermore,Agent Dutton opined that CW1 could not ascertain whether each member ofthe organization had his own supplier and how each disposed of his drugproceeds without arousing suspicion. For the same reasons, the usefulnessof CW2 and CW3 was equally limited. Furthermore, CW2 had stoppedcooperating in the investigation and Confidential Informant 1 had movedaway.

Agent Dutton then listed the reasons why other investigatory techniqueswould be unlikely to yield useful information. Because large-scale drugtraffickers tend to deal only with known and trusted individuals, anundercover agent would not be successful. Moreover, Domingo Cepeda was especially wary about sharing informationbecause he believed that Yin, a supplier, was arrested on an informant'sinformation. Physical surveillance was not beneficial because it couldnot determine whether a meeting was drug related, or the nature of therelationship of those watched, and most of the drug transactions occurredindoors. Summoning the Target Subjects before a Grand Jury was not anoption due to concern that they would be uncooperative, invoke theirFifth Amendment privilege, and/or alert them to the investigation andpotentially cause them to flee. For similar reasons, witness interviewswere also rejected. Search warrants were considered and declined becauseof the uncertainty of the stash locations, and because they would beunlikely to reveal the identity of all of the members and associates, andwould alert the Target Subjects of the investigation. Finally, penregisters and trap and trace devices, though used, were of limited valuebecause they did not reveal the content of the telephone conversations.Agent Dutton, without question, provided a full and complete explanationabout investigative procedures which had been tried, their limitations,and why others appeared to be unlikely to succeed. The facts he set forthare more than minimally adequate to support the necessity of a wiretap.

Defendant Nelson Cepeda also contends that the wiretap application wasunsupported by probable cause. Section 2518(3)(b) allows forauthorization, upon a judge's finding, among other things, that there is probable cause for belief that particular communications concerning that offense will be obtained through such interception . . .18 U.S.C. § 2518(3)(b). "Probable cause exists when theaffidavit demonstrates in some trustworthy fashion the likelihood that an offense has been oris being committed." United States v. Santana, 342 F.3d 60, 65(1st Cir. 2003).

In his affidavit, Agent Dutton stated that a cooperating witness hadmade seven consensually recorded telephone calls to Domingo Cepeda's cellphone and discussed or planned drug transactions. (Dutton Aff. ¶ 29).CW1 also overheard defendant Domingo Cepeda discussing drug deals on hiscell phone on more than one occasion. (Dutton Aff. ¶ 39, ¶ 58,¶ 60). Given these facts, the wiretap application provided sufficientprobable cause that communications regarding drug transactions would beobtained through such interception.

Defendants Jose Reina-Reyes and Jose Rivera also contend that the goalsof the investigation were overly broad in its attempts to identify all ofthe participants in the drug conspiracy. However, the "failure to obtainthe identities of or evidence against all the conspirators" is not anoverly broad reason to obtain a wiretap. See United States v.Abou-Saada, 785 F.2d 1, 13 (1st Cir. 1986).5

Finally, defendants request a hearing concerning Agent Dutton'sstatement about the continued liberty of CW1 pursuant to Franks v.Delaware, 438 U.S. 154, 98 S.Ct. 2674 (1978). Defendants contendthat the government applied for and received the wiretap order on thesame day that CW1 was scheduled to appear in court to determine whetheror not his plea would be accepted. Defendants contend that the governmentcould have waited to find out whether CW1 would continue to be available.

To mandate a Franks hearing, defendants must allege"deliberate falsehood or [a] reckless disregard for the truth, and thoseallegations must be accompanied by an offer of proof." Id. at682. Once that burden is met, if the "material that is the subject of thealleged falsity or reckless disregard is set to one side, [and] thereremains sufficient content in the warrant affidavit to support a findingof probable cause, no hearing is required." There is no evidence of falsestatements in Dutton's affidavit. To the contrary, he states all relevantinformation concerning CW1. He states that CW1 has a trial date set forJune 17, 2002, and merely notes that although the Assistant U.S. Attorneytold him that the Commonwealth would accept CW1's plea, and recommendtime served, as always, there is "no guarantee that the sentencing judgewill agree with that recommendation. . . . " (Dutton Aff. . . . 97(a)).Furthermore, even without this statement, there remains sufficientinformation in the affidavit warranting a finding of probable cause.

Accordingly, defendants' motions to suppress are DENIED.

1. The defendants do not contest the interception of defendantAparicio Gutierrez-Sanchez's phone.

2. The government states that all the defendants in this case wereintercepted at least once except for William Torres who was incarceratedduring the relevant time period.

3. Since the filing of these motions, several of the defendants havepled guilty.

4. Section 2518(3)(c) states that a judge may authorize a wiretapupon the determination that, among other things, normal investigative procedures have been tried and have failed or reasonably appear unlikely to succeed if tried or to be too dangerous . . .18 U.S.C. § 2518(3)(c).

5. To the extent defendants rely on United States v.Blackmon, 273 F.3d 1204 (9th Cir. 2001), to argue that AgentDutton's affidavit had boilerplate conclusions and described the inherentlimitations of normal investigative procedures, their arguments fail.Blackmon is distinguishable. There, as here, after an initialinvestigation using traditional techniques, a wiretap was authorized forthe target suspect. The Blackmon court focused on a "spin-off"wiretap and suppressed evidence derived from it for two interrelatedreasons: (1) the application, which had been previously used for anothersuspect, had material misstatements and omissions concerning thenecessity requirement and (2) once these misstatements were purged, onlygeneric, boilerplate statements remained. Id. at 1208. Here,there are no allegations of misstatements, except for the statementsconcerning CW1's liberty which are to be addressed directly. Furthermore,although Agent Dutton did detail some inherent limitations to theconsidered investigative techniques, he also specifically referenced thelimitations of the cooperating witnesses in this case.

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