USA v. Larios et al

2023 | Cited 0 times | D. Massachusetts | February 2, 2023


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Criminal Action No. 1:21-cr-10118-IT JOSE LARIOS, et al., Defendants.


February 2, 2023 TALWANI, D.J.

On April 15, 2021, a grand jury indicted Defendants Jose Larios, Angel Valenzuela, Rafael Torres, and two others. Indictment [Doc. No. 1]. Larios, Torres, and Valenzuela were charged with conspiracy to distribute and to possess with intent to distribute a controlled substance in violation of 21 U.S.C. § 846 and Larios and Torres were charged with conspiracy to launder money in violation of 18 U.S.C. § 1956(h). Id. Larios, joined by Torres, now seeks to suppress evidence the government obtained pursuant to wiretap interceptions under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, see 18 U.S.C. §§ 2510-2522, and any evidence derived therefrom. Mot. to Suppress Title III Interceptions [Doc. No. 114]; Elec. Order [Doc. No. 152 . Valenzuela seeks to suppress evidence the government obtained from a vehicle search. Mot. to Suppress Evidence [Doc. No. 115]. For the following reasons, the motions are DENIED.

I. Background

A. The Start of the Investigation an investigation into a Mexico-based drug trafficking organization (the based on information obtained S- DEA - . DEA Agent Mark Concannon, Jan. 6, 2020 Affidavit ¶¶ 25, 28 [Doc. No. 114-4]. CS-1 provided information that the DTO could supply multiple-kilogram quantities of fentanyl to buyers in the United States. Id. at ¶ 28. CS-1 passed the phone number of CW-1 to a Mexican male, Alejandro Cisneros Noyola (aka Capi ), and CW-1 engaged in negotiations with several members of the DTO to arrange the transport of 17 kilograms of fentanyl to Massachusetts. Id. at ¶¶ 7, 23, 29.

During the week of October 14, 2019, CW-1 received several calls from various Mexico- based numbers and discussed the buying and selling of kilogram quantities of fentanyl. Id. at ¶¶ 30-32. 1

The first call was from an unknown Mexican male who discussed establishing a drug trafficking relationship with CW-1 and inquired about which drugs CW-1 was interested in purchasing. Id. at ¶ 30. CW-1 said that he was interested in purchasing fentanyl. Id. The Mexican male told CW-1 that he had an associate who could arrange to sell CW-1 kilogram quantities of fentanyl. Id. at ¶ 31.

CW-1 received a second call from a different Mexico-based number in which he spoke with a different Mexican male. Id. at ¶ 32. The second caller told CW-1 that he could pick up 10 kilograms of fentanyl in New York, to which CW-1 responded that he was in Massachusetts and would not travel to New York to pick up the fentanyl. Id. The second caller informed CW-1 that he would find someone to transport the drugs to CW-1 in Massachusetts and he further agreed to sell CW-1 fifteen kilograms of fentanyl at a price of $44,000 per kilogram, inclusive of

1 All referenced calls between CW-1 and other callers were consensually recorded on the phone used by CW-1. Concannon Aff. ¶ 30 [Doc. No. 114-4]. An application on CW- also recorded texts placed to or from the cellular phone. Id. at ¶ 30 n.2. Investigators confirmed the contacts through toll records. Id. transportation costs. Id. He also let CW-1 know that the guy would call CW-1 when he was near the agreed upon meeting location in Boston, Massachusetts. Id.

Over the next two weeks, CW-1 had conversations with various men calling from Mexican-based phone numbers to coordinate the drug transaction, including a man named Alejandro. Id. at ¶¶ 32-39. On October 25, 2019, CW-1 exchanged a series of recorded calls and text messages with a Mexico-based cellular phone number during which a male who identified himself as Alejandro continued to discuss the logistics of the drug transaction with CW-1. Id. at ¶ 34.

B. Communications between CW-1 Regarding Delivery On October 26, 2019, CW-1 received a text message from the phone number (857) 261- 2


Id. at ¶¶ 17a, 37; DEA Ag Drobac Aff. ¶ 27 [Doc. No. 114-9]. That same day, the 1085 Phone was used to call CW- Concannon Aff. ¶ 38 [Doc. No 114-4]. CW-1 asked what was going on, and the 1085

Id. CW-1 told the 1085 Phone caller that he could not go that day. Id. The 1085 Phone caller Id. CW-1 agreed, confirming that they would meet the following week to conduct the drug transaction. Id. The call ended with CW-1 and the 1085 Phone caller agreeing to speak later. Id.

2 As discussed below, on January 2, 2020, the 1085 Phone was found in Valenzuela at the time of his arrest. 3 Agent Concannon stated that he believes the 1085 Phone texter was explaining that he was contacting CW-1 on behalf of Capi to coordinate the fentanyl purchase that CW-1 and Capi had previously discussed. Id. at ¶ 37.

C. October 30, 2019 Communications with CW-1 On October 30, 2019, CW-1 received a call from another unidentified Mexican male who told CW-1 he was flying out to meet with CW-1 the following day. Id. at ¶ 39. After this call, CW-1 spoke with Alejandro, who told CW-1 that his guys would be arriving in Boston the following day to meet with CW-1 to finalize the logistics for the delivery of the fentanyl. Id. During the call, CW-1 provided Alejandro with an address for a location in Boston and a time for when the meeting would take place. Id.

D. October 31 and November 2, 2019 Meetings with CW-1 On October 31, 2019, Larios rented a car from the Enterprise car rental office, located at the Bradley International Airport in Windsor Locks, Connecticut. Id. at ¶ 40. Enterprise records show that in renting the vehicle, Larios gave and the telephone number the government later identified as the Target Telephone in the January 6, 2020 wiretap application. Id. at ¶¶ 7a, 40. The same day, investigators observed Larios and Oscar Velazquez inside the rental car in the parking lot of the meeting location that CW-1 had provided to Alejandro for finalizing logistics of the drug transaction. Id. at ¶¶ 17b, 17d, 39- 41. CW-1 called Alejandro when he arrived at the location, and Alejandro directed CW-1 to Larios. Id. at ¶ 41. 4

Larios entered CW- CW-1 that a courier who worked for Larios would deliver 17 kilograms of fentanyl to CW-1 the following day. Id. at ¶ 41. 5

On November 1, 2019, Alejandro called CW-1 and told him that the delivery truck had been delayed and that Larios would call CW-1 later that afternoon to arrange a meeting where

4 Investigators later matched the person they saw in the car at the location with the photograph . Id. at ¶ 40. 5 The meeting inside CW-1s car was recorded. Id. at ¶ 41. they could discuss the delivery. Id. at ¶ 42. On November 2, 2019, after CW-1 spoke with Alejandro on the phone again, investigators surveilled CW-1 meeting with Larios and Velazquez in Boston. Id. at ¶ 43. At that meeting, Larios told CW-1 that the delivery truck was in Assonet, Massachusetts, and that someone would call CW-1 the next morning to finalize details of the transfer. Id. Also during this meeting, CW-1 observed that courier Velazquez selected

a specific phone the to hand to Larios. Id.

E. November 3, 2019 Drug Transaction On November 3, 2019, Larios texted CW-1 from a phone other than the Target Telephone the address in Assonet where CW-1 was to meet the courier. Id. at ¶ 44. As CW-1 approached the white tractor trailer truck, driven by Defendant Marco Antonio Jauregui Jauregui gave CW-1 a and handed him a bag that weighed approximately 17 kilograms and contained the contents of which field-tested positive for fentanyl. Id. 6

Once CW-1 had taken possession of the fentanyl, investigators directed Massachusetts State troopers to stop rental car as it was driving towards Connecticut. Id. at ¶ 45. During the stop, the Id.

6 The suspected fentanyl was sent to the DEA Laboratory for confirmation testing, and those results were pending at the time the Concannon Affidavit [Doc. No. 114-4] was signed. Id. at ¶ 44.

F. Communications After the November 3, 2019 Drug Transaction After the November 3, 2019 delivery, Alejandro called CW-1 numerous times to collect payment for the drugs. Id. at ¶ 50. On December 22, 2019, Alejandro gave CW-1 a phone number (not the Target Telephone number) to contact Larios. Id. On December 23, 2019, CW-1 called Larios at that number and Larios pressed CW- Id. at ¶ 51. Agent Concannon states in his affidavit that he believes based on the investigation that Larios was referring to payment for the 17 kilograms of fentanyl. Id. at ¶ 52.

G. January 2, 2020 Drug Transaction and Vehicle Stop and Search On January 1, 2020 District of Massachusetts. Id. at ¶ 53. 7

The following day, the precise location data for the 1085 Phone indicated it Id. at ¶ 54. The location data had allowed investigators to identify 797 River Street as a

Id. at ¶ 79.

Using the precise data location, agents followed the 1085 Phone as it traveled away from 797 River Street in a white Honda Accord and led them to a truck driven by Jauregui. Id. at ¶ 54; Drobac Aff. ¶ 51 [Doc. No. 114-9]. 8

Agents observed Jauregui and Valenzuela meet at the passenger- observed Valenzuela unload two heavy black duffle bags

7 On October 29 and December 20, 2019, a magistrate judge issued warrants authorizing agents to obtain precise location data for the 1085 Phone and the phone used by Jauregui (as well as another phone believed to be connected with the DTO). Drobac Aff. ¶¶ 121, 134-135 [Doc. No. 114-9]. 8 The government contends that this truck was the same as the one that investigators observed Jauregui use in the November 3, 2019 drug transaction. The Drobac Affidavit [Doc. No. 114-9] identifies different license plate numbers for the truck (varied by one number), different states (but the same plate number) for the tractor license plate, and different manufacturing years for the tractor. See Drobac Aff. ¶¶ 36, 50 [Doc. No. 114-9]. Valenzuela does not raise these discrepancies in his motion, and the court finds that they are not material to the issue at hand. and place them in the white Honda Accord. Concannon Aff. ¶ 54 [Doc. No. 114-4]; Drobac Aff. ¶ 51 [Doc. No. 114-9]. Agents followed the white Honda Accord. Concannon Aff. ¶ 54 [Doc. No 114-4]; Drobac Aff. ¶ 51 [Doc. No. 114-9]. The Honda Accord stopped in Woburn, Massachusetts where the agents saw Valenzuela exit the vehicle and get into a Chevy Equinox. Drobac Aff. ¶ 51 [Doc. No. 114-9].

Agents requested that the Chevy Equinox be stopped and at approximately 12:20 p.m. on January 2, 2020, a Massachusetts State Police trooper pulled over the vehicle. Concannon Aff. ¶ 54 [Doc. No 114-4]. The driver of the Chevy Equinox told agents that he was an Uber driver and that the destination Valenzuela had given when he ordered the Uber was 797 River Street. Drobac Aff. ¶ 51. [Doc. No. 114-9]. 9

When the vehicle was stopped, Valenzuela was in the back seat and the two black duffel bags were in the car within his reach. Id. Authorities seized the duffle bags and discovered therein twenty-three ndividually wrapped bricks of a substance, which field tested positive for cocaine Concannon Aff. ¶ 55 [Doc. No. 114-4]. Valenzuela claimed that he had no knowledge of the cocaine, that someone had paid him $900 to pick up the bags, and that his friend lived at the 797 River Street address. Id. at ¶ 55. Valenzuela was placed under arrest. Id. At the time of arrest he had the 1085 Phone in his possession. Id.

9 The government states that at the time of the stop there was an outstanding warrant for Valenzuela forgery, possession of falsified documents, and a false application for a license, and an

H. Toll Records and DEA Agent of the Target Telephone Communications

According to toll records, between October 3, 2019, and January 2, 2020, there were 42 calls between the Target Telephone and a phone believed to be used by Jauregui. Id. at ¶ 58. Toll -1 and Larios, (909) 320-0416 s the phone number used by Jauregui. Id. at ¶¶ 29, 58. 10

Agent Concannon states that he believes

-1 when the fentanyl would be arriving in Massa Id. at ¶ 58. On January 2, 2020, the Target Telephone had ] Valenzuela. Id. Agent Id.

Between October 3, 2019, and January 2, 2020, toll records show 196 calls and 32 text messages, with the most recent contact on December 28, 2019, between the Target Telephone and a phone number subscribed to a certain individual who was arrested by the DEA in 2008 and

loaded 9mm semi- Id. at ¶ 59. 11

Agent Concannon states that this individual Id.

10 On November 6, 2019, investigators contacted Mercer Transportation Company Inc., the trucking company for which Jauregui works, and it provided (909) 320- contact number. Concannon Aff. ¶ 58 [Doc. No. 114-4]. 11 edacted in the affidavit. Id. at ¶ 59.

Toll records also show that between October 3, 2019, and January 2, 2020, there were 4 calls and 30 text messages between the Target Telephone and a phone number subscribed to JDS Transport, a trucking company for which Larios is a financially liable party. Id. at ¶ 60. Agent Concannon states that based on the facts detailed above, distribute multi-kilograms of fentanyl to customers in the United States. Id.

I. The Wiretap Interceptions On January 6, 2020, the government applied for authorization to tap the Target Telephone, see Appl. ¶ 2.a [Doc. No. 114-3], relying on an affidavit submitted by Agent Concannon, see Concannon Aff. [Doc. No. 114-4].

The Concannon affidavit identifies the objectives of this investigation as including:

a. The identities and locations of accomplices, aiders and abettors, co-conspirators

and participants in the Target Offenses, 12

in particular those persons storing, transporting, and distributing narcotics; b. The locations and items used in furtherance of the Target Offenses, in particular,

the locations where controlled substances are stored in the United States, and the locations where controlled substances are distributed in the United States; c. The existence and locations of records pertaining to the Target Offenses; d. The locations and sources of resources used to finance the Target Offenses; e. The locations and disposition of the proceeds from the Target Offenses;

12 and distribution of controlled substances, in violation of 21 U.S.C. § 841(a)(l); the use of a communication facility in the commission of narcotics trafficking offenses, in violation of 21 U.S.C. § 843(b)(3); conspiracy to commit narcotics trafficking offenses, in violation of 21 U.S.C. Id. at ¶ 7.

f. The times and dates when the persons involved in this narcotics operation

transport, deliver and pick up narcotics; and g. The methods, times, and places of interstate or foreign travel and transportation in

aid of the Target Offenses. Id. at ¶ 62. Agent

other Target Subjects, and the identification of other co-conspirators who are not currently Id. at ¶ 107.

On January 6, 2020, a district judge in this District granted the wiretap application and authorized the DEA to intercept communications made to and from the Target Telephone. See First Order -5]. The same district judge issued a second 30-day authorization order on February 6, 2020, see . No. 114-8], 13

and a district judge in the Central District of California issued three additional 30-day authorizations to intercept the Target Telephone on July 1, 2020, August 18, 2020, and February 8, 2021, see Third Order Authorizing Interception of Wire Communications [Doc. No. 114-10]; Fourth Order Authorizing Interception of Wire Communications [Doc. No. 114-12]; Fifth Order Authorizing Interception of Wire Communications [Doc. No. 114-14]. 14

13 The second wiretap application was accompanied by a second affidavit by Agent Concannon dated February 6, 2020 which referenced his January 6, 2020 affidavit and added additional information obtained from the ongoing investigation as well as communications intercepted from the Target Telephone pursuant to the First Order. See Agent Mark Concannon, February 6, 2020 Aff. [Doc. No. 114-7]. 14 The third, fourth, and fifth wiretap applications were each accompanied by an affidavit by Agent Mark Drobac incorporating the contents of all prior affidavits. See Mark Drobac, July 1, 2020, August 18, 2020, and February 8, 2021 Affs. [Doc. Nos. 114-9, 114-11, 111-13].

rsuant to these authorizations, conversations involving Larios and other members of the DTO were intercepted and recorded.

II. Motion to Suppress

A. Statement of Law

Searches conducted without a warrant are Fourth Amendment . . . subject only to a few specifically established and well- Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)). If a warrantless search does not fall within an exception, evidence seized during that search may not be used against the defendant, Wong Sun v. United States, 371 U.S. Davis v. United States, 564 U.S. 229, 236--d 37 (2011).

One such exception the automobile exception provides that a law enforcement officer may perform a warrantless search of a vehicle so long as the officer has probable cause to believe that the vehicle contains contraband. See United States v. White, 804 F.3d 132, 136 (1st Cir. 2015). Where law enforcement has probable cause to search a container in a car, the automobile exception also allows the search of that container without first obtaining a warrant. See California v. Acevedo the containers within it where they have probable cause to believe contraband or evidence is

reasonably trustworthy information are sufficient to warrant a person of reasonable caution in the belief that evidence of a crime w United States v. Dion, 859 F.3d 114, 131-32 (1st Cir. 2017) (quoting United States v. Silva, 742 F.3d 1, 7 (1st Cir. 2014)). Importantly, [t]he test for probable cause is not reducible to precise definition or quantification, but rather [t]he standard is satisfied when the totality of the circumstances create a fair probability that . . . evidence of a crime will be found in a particular place Id. at 132 (internal quotation marks and citations omitted) (omission and alteration in original); see also United States v. Azor, 881 F.3d turning on the assessment of And that means all that is required is the kind of fair probability on which reasonable and prudent people, not legal technicians, act. Dion, 859 F.3d at 131-32 (quoting Florida v. Harris, 133 S. Ct. 1050, 1055 (2013)). such as proof beyond a reasonable doubt or by a preponderance of the evidence . . . have no place in the [probable- Id. (quoting Harris, 133 S. Ct. at 1055) (omission and alteration in original).

[W]hen reviewing the existence of probable case . . . [the court] look[s] to the collective information known to the law enforcement officers participating in the investigation rather than isolate the information known by the individual arresting officer. Azor, 881 F.3d at 8.

B. Discussion Valenzuela moves to suppress all evidence, including the narcotics, recovered as a result of the January 2, 2020 vehicle stop and search on grounds that the search was not supported by probable cause in violation of the Fourth Amendment. Mot. to Suppress [Doc. No. 115]. Specifically, Valenzuela contends that the January 2, 2020 interaction between him and Jauregui observed by law enforcement, without more information, cannot support a finding of probable cause to stop and search the Chevy Equinox or the duffel bags contained inside. Mem. in Supp. 4-5 [Doc. No. 116].

The government counters that DEA investigators had additional information to support their belief that Jauregui had just delivered drugs to Valenzuela when they requested the state trooper to stop the Chevy Equinox in which Valenzuela The government points to the following information known to DEA investigators at the time of the stop: (i) on October 26, 2019, the 1085 Phone communicated with CW-1 to coordinate details for the delivery of the 17 kilograms of fentanyl, (ii) Jauregui acted as a drug courier, as evidenced by his delivery of the 17 kilograms of fentanyl to CW-1 on November 3, 2019; (iii) on January 2, 2020, Valenzuela was in possession of the 1085 Phone, for which the government had precise data location; and (iv) on January 2, 2020, Valenzuela and Jauregui met briefly and transported two duffel bags that appeared heavy car similar to the November 3, 2019 drug delivery. See Concannon Aff. ¶¶ 37-38, 44-45, 53-55 [Doc. No. 114-4]; -9 [Doc. No. 136].

At the time of the challenged search activity were thus based on far with Jauregui as Valenzuela characterizes it. Mem. in Supp. 5 [Doc. No. 116]. Based on the evidence collectively known to law enforcement at the time of the January 2, 2020 vehicle search, the court finds that law enforcement had probable cause to believe there were drugs inside the duffel bags. 15

15 Where probable cause existed for the search of the duffel bags, the court need not determine whether the bags were in the backseat with Valenzuela, see Concannon Aff. ¶¶ 54-55 [Doc. No. 114-4]; Drobac Aff. ¶¶ 51-52 [Doc. No. 144-9], or in the trunk, see Mem. in Supp. 3-5 [Doc. No. 116]; unsigned Valenzuela Affidavit [Doc. No. 115-1], or whether the duffle bags were zipped and closed, see unsigned Valenzuela Affidavit [115-1]; Mem. in Support 1 [Doc. No. 116], or one of the bags was partially open, see

Valenzuela information gleaned after the stop . . . [that] provid[ed] the officers and agents with probable

Id. hen a law enforcement officer with information amounting to probable cause directs an officer who lacks the knowledge to [conduct a search] we impute to the [latter] officer the directing officers knowledge. United States v. Meade knowledge of , his possession of the 1085 Phone used in coordinating a drug delivery, and his January 2, 2020 interaction with Jauregui were therefore imputed to the state trooper who conducted the stop. Where probable cause existed for the search of the Chevy Equinox and the two duffel bags prior to the stop, no further investigation or information after the stop was necessary to substantiate the search. 16

Accordingly, the court finds no Fourth Amendment violation occurred where law enforcement had sufficient probable cause to conduct the search of the Chevy Equinox and the two duffel bags inside. 17

16 Valenzuela also requests an evidentiary hearing to dispute the knowledge of the police at the time of the search and their claimed observations. Mot. to Suppress 1 [Doc. No. 115]. However, criminal defendant has no presumptive right to an evidentiary hearing on a motion to suppress. United States v. Cintron, 724 F.3d 32, 36 (1st Cir. 2013). required only if the movant makes a sufficient threshold showing that material facts are in doubt or dispute, and that such facts cannot reliably be resolved on a paper record. Most importantly, the defendant must show that there are factual disputes which, if resolved in his favor, would Id. (quoting United States v. Francois, 715 F.3d 21, 32 (1st Cir. 2013)). The court finds that an evidentiary hearing is not necessary where, absent a general contention that the law enforcement officers did not have probable cause for the search, Valenzuela does not dispute any of the information known to law enforcement collectively and there was probable cause to search the duffel bags in the Chevy Equinox based on that information. 17 As sufficient probable cause existed to conduct the search, the court need not address the inevitable discovery doctrine where both Valenzuela and the driver of the car had outstanding

III. Motion to Suppress

A. Statement of Law wiretapping as needed to allow effective investigation of criminal activities while at the same time ensuring meaningful judicial supervision and requiring specific United States v. Gordon, 871 F.3d 35, 42 (1st Cir. 2017); see also United States v. Lopez, 300 F.3d 46, 5 In accordance with Congresss concern for preserving privacy, Title III makes the interception of electronic communications by law enforcement an extraordinary investigative technique whose use is to be distinctly the exception not the rule. there is probable cause for belief that an indi

ive procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried -(c). demonstrates in some trustworthy fashion the likelihood that an offense has been or is being

United States v. Santana, 342 F.3d 60, 65 (1st Cir. 2003).

A court considering a motion to suppress evidence collected by a wiretap on the ground of insufficiency of the wiretap application the facts set forth in the application were minimally adequate to support the determination that United States v. Villarman-Oviedo, 325 F.3d 1, 9 (1st Cir. 2003) (quoting United

warrants, were arrested, and the car would have been towed and searched 136]. States v. Ashley, 876 F.2d 1069, 1074 (1st Cir. 1989) (alterations in original)); see also United States v. Taylor, 985 F.2d 3, 5 (1st Cir. 1993) (quoting United States v. Caggiano, 899 F.2d 99, 102 (1st Cir. 1990)) ( T]he duty of a reviewing court is simply to ensure that the [issuing judge] . In determining the sufficiency of an affidavit, the issuing court must consider whether the totality of the circumstances stated in the affidavit demonstrates probable cause application. United States v. Tiem Trinh, 665 F.3d 1, 10 (1st Cir. 2011) (quoting United States v. Barnard, 299 F.3d 90, 93 (1st Cir. 2002)). The court common-sense determination as to whether, given all the circumstances set forth in the affidavit[] through the order authorized by the court. Id. (internal quotation marks omitted) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)).

B. Discussion Larios contends that (i) evidence obtained as a result of the initial wiretap application (and its successors, to the extent they replicated the allegations and omissions) should be suppressed because the Concannon Affidavit [Doc. No. 114-4] complete affidavit that truthfully established probable cause to believe that calls concerning the

[T]arget [O]f ; (ii) the material omissions in the Concannon Affidavit [Doc. No. 114-4] entitle him to a Franks hearing; (iii) evidence obtained from the latter wiretap applications should be suppressed because they include summary descriptions of conversations illegally intercepted pursuant to the first wiretap application; (iv) the he affidavits facially fail to provide a nexus to Massachusetts to support territorial jurisdiction and the selection of Massachusetts as a listening post should not provide this nexus ; and (v) suppression provision contains no exception for good faith. Mot. to Suppress 11, 15, 18, 19 [Doc. No. 114]. The court addresses each argument in turn.

1. Statements and Alleged Omissions in the January 6, 2020 Concannon

Affidavit Larios primarily Affidavit [Doc. No. 114-4] omits material

undermine the existence of probable cause. Id. at 12. As to the first call on October 31, 2019, way around, and that this call could not have conveyed any information concerning the drug

shipment because phone records show that the call lasted zero seconds. Mot. to Suppress 1-4 [Doc. No. 114]. Larios further contends this information contradicts belief that [Larios] used the Target Telephone to call [Jauregui] prior to the [October 31, 2019] meeting so [Larios] could obtain information about [ ] whereabouts so he could in turn inform CW- 114-4]. As to the second and third calls on January 2, 2020, Larios argues that Concannon omitted the following details that d Offenses: the calls were made hours before the delivery, the earlier call did not connect, and the later call lasted two seconds. Mot. to Suppress 13 [Doc. No. 114]. Similarly, Larios contends that this information contradicts belief that [Larios] used the Target Telephone to coordinate [the January 2, 2020] delivery. -4].

While the government acknowledge contacted the Target Telephone (instead of vice versa), it posits that neither that mistake nor the

fact that the three calls either did not connect or lasted for only a few seconds negates the existence of probable cause lephone was being used in furtherance of the Target Offenses The government notes that it remains undisputed that the Target Telephone was in contact with two known drug deliveries, and thus Concannon had grounds to believe that Larios was using the Target Telephone to communicate with Jauregui about drug deliveries. Id. For further support of probable cause, the government points to (i) the 39 other contacts between the Target Telephone and , and January 2, 2020, with the most recent voice contact occurring just a few ; (ii) the Target Telephone to rent a vehicle in Connecticut, which he then drove on October 31, 2019, to meet CW-1 to discuss the delivery of 17 kilograms of fentanyl; and (iii) contacts between the Target Telephone and phones subscribed in the name of JDS Transport business where the DTO used trucks to transport drugs. Id. at 7-8.

In considering a claim that improperly omitted facts . . . undermine probable cause the court ask[s] whether, had the omitted information been included, there would still have been a to support the determination that was made. United States v. Burgos-Montes, 786 F.3d 92, 103 (1st Cir. 2015). In this case, the answer is yes. Concannon never states that Larios spoke with Jauregui during the three calls at issue but rather that the As CW-1 had observed Larios with multiple phones used for drug trafficking, it was reasonable for Concannon to believe that a contact from the Target Telephone served as a mode of communication in furtherance of the Target Offenses. Furthermore, other facts in affidavit support probable cause to believe that Larios was engaged in drug trafficking offenses and that interception of wire communications over the Target Telephone would result in evidence of those offenses. Namely, the affidavit details that the Target Telephone called Jauregui, a known drug courier, tens of times during the October 2, 2019 to January 2, 2020 period, that Larios used the Target Telephone to communicate with phone numbers subscribed to JDS Transport and that Larios used the Target Telephone in connection with the rental of the car used to meet CW-1. 18

While Larios may have used the Target Telephone to speak with JDS Transport employees about legitimate business, trucks (and truck drivers) were being used in furtherance of the Target Offenses with JDS Transport employees may have been related to drug trafficking.

To be sure, the bits and pieces of information garnered by the government do not comprise a seamless narrative. United States v. Encarnacion, 26 F.4th 490, 499 (1st Cir. 2022) (finding probable cause exists . But as the First Circuit noted in Encarnacion,

seamless narratives are not the stuff of wiretap applications, and to hold that [] relatively small inconsistencies undermine the [] probable cause determination would require [] [] overlook[ing] the forest for the trees. Id.

18 Larios Affidavit [Doc. No. 114-4] improperly omitted that the Target Telephone was never used to contact CW-1, [Valenzuela], or any other phone number that had contact with CW-1 to arrange the November 3, 2019[] transaction or the January 2, 2020[] transaction, Mot. to Suppress 13-14 [Doc. No. 114], carries little weight where the affidavit notes that Larios used multiple phones other than the Target Telephone to communicate with various individuals, including CW-1, and reasons that Target Telephone to contact CW-1, Concannon Aff. ¶¶ 43, 44, 44 n.3, 50, 51 [Doc. No. 14-4]. For the same reason, Larios Telephone did not call Jauregui on November 2, 2019 (the day before the November 3, 2019 drug transaction) is unpersuasive. Mot. to Suppress 13 [Doc. No. 114]. The fact remains that the Target Telephone had numerous contacts with the phone used by Jauregui and the Target Offenses are not limited to the November 3, 2019 and January 2, 2020 drug transactions.

Accordingly, the totality of facts put forth in Con Affidavit [Doc. No. 114-4] in support of the wiretap application for the Target Telephone were more than minimally adequate to support probable cause that Larios was involved in the Target Offenses in affiliation with the DTO, that he used the Target Telephone in furtherance of the Target Offenses, and that interception of the Target Telephone would aid the investigation.

2. Franks Hearing Larios contends that he is entitled to a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978). A defendant seeking a Franks hearing

intentionally or with reckless disregard for the truth, and that this misstatement was necessary to the finding of prob United States v. Nelson-Rodriguez, 319 F.3d 12, 34 (1st Cir. 2003) (citing Franks, 438 U.S. at 155-56); United States v. Adams, 305 F.3d 30, 36 n.1 (1st Cir. 2002) Franks hearing in place of a Nelson-Rodriguez, 319 F.3d at 34 (citing United States v. Scalia, 993 F.2d 984, 987 (1st Cir. 1993)); see also United States v. Charles, 213 F.3d 10, 24 (1st Cir. 2000).

As discussed above, the toll records at issue do not contain a material omission, and thus Larios is not entitled to a Franks evidentiary hearing.

3. Evidence Obtained from the Four Subsequent Wiretap Orders Where the court has found that the government provided adequate support for the January 6, 2020 wiretap application, Larios wiretap applications should be suppressed because those applications include summary

descriptions of conversations illegally intercepted pursuant to the initial wiretap application fails.

4. Territorial Jurisdiction Under Title 18, United States Code, § 2518(3), a judge may authorize the interception of wire , or oral communication through the use of any electronic, mechanical or other § 2510(4).

With respect to the First and Second Orders, Larios contends that territorial jurisdiction as required by 18 U.S.C. § 2518(3) is lacking because the Target Telephone is a California based cellphone used by a California resid communications being made while the Target Telephone was not physically present in the District of Massachusetts to phones also not in the district (with the exception of calls initiated by the government through cooperators). Mot. to Suppress 17-18 [Doc. No. 114]. In short, Larios argue[s] that the listening post theory of jurisdiction, i.e. that an interception occurs either where the phone is located or where the listening post is located, is ill-conceived and urge[s] this Court to depart from nearly 30 years of precedent. United States v. Sidoo, 468 F. Supp. 3d 451, 455 (D. Mass. 2020).

Although the First Circuit has not yet spoken on the issue, the government points out that every appellate court to consider the issue has concluded that the interception occurs either (citing United States v. Rodriguez, 968 F.2d 130, 136-37 (2d Cir. 1992); United States v. Cano-

Flores, 796 F.3d 83, 87 (D.C. Cir. 2015); United States v. Henley, 766 F.3d 893, 911-12 (8th Cir. 2014); United States v. Luong, 471 F.3d 1107, 1109-10 (9th Cir. 2006); United States v. Jackson, 207 F.3d 910, 914-15 (7th Cir. 2000), vacated on other grounds, 531 U.S. 953 (2000); United States v. Denman, 100 F.3d 399, 402-03 (5th Cir. 1996); United States v. Jackson, 849 F.3d 540, 552 (3d Cir. 2017) ( statute modeled after Title III); United States v. Tavarez, 40 F.3d 1136, 1138 (10th Cir. 1994) (same, Oklahoma statute)). Further, while not the central issue in Dahda v. United States, the Supreme Court noted in that case could lawfully intercept communications made to or from telephones located within [the listening post state] or outside [the listening post state]. Dahda v. United States, 138 S. Ct. 1491, 1499 (2018).

In the present case, the interceptions pursuant to the First and Second Orders were made in Massachusetts where the listening post was based. Accordingly, the court finds that the court issuing the First and Second Orders had statutory authority to do so as required by 18 U.S.C. § 2518(3). 19

5. Good Faith Exception The court need not determine -United States v. Leon, 468 U.S. 897 (1984), applies to Title III applications where the court has found the first Title III application provides sufficient probable cause and the First and Second Orders meet the territorial jurisdiction requirement under 18 U.S.C. § 2518(3).

19 Since the court finds the territorial jurisdiction requirement met because of the Massachusetts listening post Target Telephone while in Massachusetts to Jauregui cannot trigger wholesale interception of communications.

IV. Conclusion

s Motion to Suppress Title III Interceptions [Doc. No. 114] Motion to Suppress [Doc. No. 115] are DENIED. IT IS SO ORDERED.

February 2, 2023 /s/ Indira Talwani United States District Judge

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