USA v. RAZO et al

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
UNITED STATES OF AMERICA, )
)
v. ) 1:11-CR-184-JAW
)
MARK RAZO, )
)
Defendant )
REDACTED1 RECOMMENDED DECISION
ON MOTION TO SUPPRESS WIRE INTERCEPTS
Defendant Mark Razo seeks the suppression of intercepted voice and text
communications obtained by means of a multiple court wiretap/intercept orders. Razo contends
that the Government’s affidavits in support of the wiretap orders fail to demonstrate the need for
wiretaps to investigate and prosecute the criminal conduct under investigation. The Court
referred Razo’s Motion to Suppress Wire Intercepts (ECF No. 57) for report and recommended
decision. I now recommend that the Court deny the motion.
Defendant and his co-defendant, Barry Diaz, are charged in a Second Superseding
Indictment with three counts of knowing and intentional use of a communication facility (counts
I-III) and one count of conspiracy to distribute and possess with intent to distribute controlled
substances (count IV). In support of its investigation of the alleged offenses, the Government
sought and obtained court orders to intercept and preserve wire and electronic communications.
1 This recommended decision is redacted because the underlying wiretaps discussed herein remain under seal
on the docket and are only available in paper format from the clerk’s office. As the parties discuss some of the
content of those intercepts in their memoranda, I am uncertain of the necessity for the continued sealing of this
information, nevertheless I do not believe it is appropriate for me to disregard the prior orders sealing these matters.
In the event both parties agree that there is no reason for these matters to remain under seal and that this
recommendation can be made publicly available in its entirety, they should file a joint motion to unseal the
unredacted version of the recommendation. In the event the parties file no such motion, the district judge will
determine whether the unredacted recommendation is to remain under seal. The publicly available redacted version
of the Recommended Decision omits roughly 7 pages of double-spaced text which discuss the contents of
government affidavits.
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The Government’s interception of wire, oral, and electronic communications is permitted
under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, subject to multiple
conditions, including court authorization.2 18 U.S.C. §§ 2516, 2518. The statutory procedure
for obtaining a court order authorizing the interception of wire, oral, or electronic
communications requires the Government to apply for an order to “a judge of competent
jurisdiction.” Id. § 2518(1). Among the multiple items of information that must be supplied in
the application are details of the offense under investigation, details of the nature and location of
the “facilities from which or the place where the communication is to be intercepted,” details of
the “type of communications sought,” the identity of the person targeted by the interception
activity, and “a full and complete statement” as to what other “investigative procedures” were
“tried and failed” and, if other less invasive procedures have not been tried, a statement as to
why they are considered “unlikely to succeed” or “too dangerous.” Id. § 2518(1)(b), (c).
The Government’s application is made ex parte and the judge “may enter an ex parte
order, as requested or as modified, authorizing or approving interception” if the judge finds
probable cause to believe that the target person “is committing, has committed, or is about to
commit” one or more specific offenses identified in Title III; probable cause to believe that
“particular communications concerning that offense will be obtained”; a reasonable basis to
conclude that “normal investigative procedures have been tried and have failed or . . . appear to
be unlikely to succeed or . . . too dangerous,” if tried; and probable cause to believe that the
“facilities” and/or place “are being used, or are about to be used, in connection with the
commission of such offense, or are leased to, listed in the name of, or commonly used by such
person.” Id. § 2518(3). The judge’s order must be specific and restrict the authorization to
2 An exception to judicial pre-authorization exists for certain emergency situations, not applicable here. 18
U.S.C. § 2518(7).
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intercept to, among other things, a specific person, if known, specific facilities and/or place, the
type of communications to be intercepted, the offense to which the communications relate, and
the period of time in which interception is authorized. Id. § 2518(4). As for duration, no order
may authorize or approve interceptions “for any period longer than is necessary to achieve the
objective of the authorization, nor in any event longer than thirty days,” subject however to
applications for extensions based on additional showings along the lines of what is required of an
initial application. Id. § 2518(5). All orders and extensions “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 . . .,
and must terminate upon attainment of the authorized objective, or in any event in thirty days.”
Id.
“[I]n the event the application is granted, Title III provides numerous grounds upon
which communications obtained pursuant to a Title III warrant may be suppressed in any
proceeding.” United States v. Lopez, 300 F.3d 46, 52 (1st Cir. 2002). Thus:
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 of 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.
Id. § 2518(10)(a).
BACKGROUND
The Court issued intercept orders against four mobile phones used by co-Defendant Barry
Diaz. These orders span a time period between mid-April 2011 and Diaz’s arrest in early August
2011. The Orders, applications, reports, and related exhibits are docketed in paper as sealed
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miscellaneous cases 1:11-mc-78-JAW (mobile telephones 1 and 2), 1:11-mc-105-JAW (same),
1:11-mc-145 (mobile telephone 3), and 1:11-mc-146 (mobile telephone 4).
A. The initial application and order (1:11-MC-78-JAW)
The initial application sought authorization to intercept the telephone conversations and
text messages of Barry Diaz and seven other “target subjects” relayed through one specific
mobile telephone subscribed to by Diaz, concerning offenses involving the distribution of (and
possession with intent to distribute) controlled substances, the use of wire facilities to effectuate
the same, and money laundering offenses (including conspiracy). Defendant/Movant Razo was
not named as one of the target subjects but became a target subject in later applications.
The DEA Task Force Agent’s affidavit in support of the application contains a lengthy
investigation overview that supplies more than ample probable cause of drug trafficking based
on criminal background information, reports and recordings made by confidential sources,
controlled purchases, physical surveillance, and pen register and cell site location data. It depicts
Diaz (California native and Connecticut resident) as the leader of a distribution network in the
greater-Augusta area and explains that a primary focus of the investigation was to identify Diaz’s
sources of supply from outside the State of Maine.
REDACTED
The affidavit includes a “necessity and exhaustion” section. In it the affiant explains that
despite the wide-ranging investigative resources used to date to develop the probable cause
showing, the Government still did not have the evidence needed to understand the entire scope of
the conspiracy, in particular in relation to sources of supply. The affiant proposed that
interception of wire and electronic communications was the only means reasonably likely to
secure the information needed to determine, among other things, the organization’s sources of
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supply, its concealment and distribution methods, and its utilization of cash proceeds.
REDACTED
The Court granted the application on April 15, 2011, authorizing a 30-day period in
which agents could intercept Diaz’s wire and electronic communications. On April 29, 2011,
the Government filed a progress report.
REDACTED
B. Second application and orders (1:11-MC-00078-JAW; 1:11-MC-00105-JAW)
On May 12, 2011, the Government applied for another intercept order. In the application
the Government sought continued monitoring of target telephone 1 and new monitoring for
target telephone 2.
REDACTED
On May 12, 2011, the Court issued two intercept orders, one for each of the target mobile
phones. As to the first mobile phone, the order authorized continued interception. (1:11-MC-
00078-JAW.) The Court separately docketed the application papers and the intercept order for
the second mobile phone (1:11-MC-00105-JAW) though it is necessary to review both dockets
as many of the filings pertain to both phones and are not reproduced in both case files.
The Government filed a report on May 26, 2011.
REDACTED
C. Continuation of interception
The Government sought authorization for continued interception on June 10, 2011, which
the Court granted that day. The Court authorized continued interception over both telephones.
(1:11-MC-00105-JAW.) The underlying application included an updated affidavit reciting
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ample probable cause to support an intercept order targeting the identified mobile phones. (1:11-
MC-00078-JAW.)3
REDACTED
The Government next filed a report on June 10, 2011, followed by another report on June
24, 2011. (1:11-MC-00078-JAW.)
REDACTED
D. New application (1:11-MC-00145-JAW; 1:11-MC-00146-JAW)
On July 1, 2011, the Government applied for a new intercept order targeting two recently
activated mobile phones believed to be in Diaz’s possession and used by him in furtherance of
drug trafficking and related criminal activity. The Court issued its intercept order on even date,
finding both probable cause and a sufficient showing that normal investigative techniques have
been tried, had either failed or had limited success, and were not reasonably likely to succeed or
were too dangerous to attempt on their own.
REDACTED
The Government filed its final application for continuation of the intercept order on July
29, 2011. The Court granted the application on even date.
REDACTED
The Government’s response in opposition to Defendant Razo’s motion to suppress states
that interceptions over mobile phones 3 and 4 ceased on August 6, 2011, following the arrest of
Diaz.
3 I cite the docket numbers to facilitate review of the paper files. The citation is a reference to the paper case
file in which I found the filing in question. At present, not every order and application is reproduced in the paper
files associated with 11-MC-00078 and 11-MC-00105. I am not suggesting that they need be, only identifying
where I found the materials in question.
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DISCUSSION
Defendant Razo contends that any communications intercepted by the Government to
support its case against him must be suppressed because the Government did not make a
sufficient showing in its applications for the intercept orders that less intrusive procedures were
tried and failed or would have been unlikely to succeed if tried. (Mot. to Suppress Wire
Intercepts at 1, ECF No. 57.) The requirement that the Government demonstrate the nonutility of
other investigative procedures before resorting to surreptitious intercepts is commonly described
as the “necessity requirement.” Lopez, 300 F.3d at 52. The requirement is “simply designed to
assure that wiretapping is not resorted to in situations where traditional investigative techniques
would suffice to expose the crime.” United States v. Kahn, 415 U.S. 143, 153 n.12 (1974). To
demonstrate the need for an intercept order, “the government must demonstrate that it has made
‘a reasonable, good faith effort to run the gamut of normal investigative procedures before
resorting to means so intrusive as electronic interception of telephone calls.” Lopez, 300 F.3d at
52 (quoting United States v. Hoffman, 832 F.2d 1299, 1306-307 (1st Cir. 1987)). The
requirement is only a rule of reason; it does not demand that investigators “exhaust all other
conceivable investigative procedures,” United States v. Edwards, 69 F.3d 419, 429 (10th Cir.
1995), let alone “run outlandish risks,” Hoffman, 832 F.2d 1306; only that there be a reasonable
basis for the issuing court to conclude “that normal investigatory procedures reasonably appear[]
unlikely to succeed.” United States v. Ashley, 876 F.2d 1069, 1074 (1st Cir. 1989). See also
Lopez, 300 F.3d at 52-53 (citing and quoting Ashley, Hoffman, and Edwards).
When reviewing the propriety of intercept orders in the context of a motion to suppress
evidence, the reviewing court’s task is to make a “practical and commonsense” assessment
whether the facts set forth in the Government’s application “are minimally adequate to support
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the findings made by the issuing judge.” United States v. Rivera-Rosario, 300 F.3d 1, 19 n.23
(1st Cir. 2002) (internal quotation marks omitted). The movant is only entitled to a hearing on
the adequacy of the Government’s necessity showing if the movant demonstrates that the
showing depends on false statements that would otherwise support a Franks hearing. Id. at 20.
Thus, the movant must make a “substantial preliminary showing” that an affidavit in support of
an application contains false statements or material omissions, made knowingly and
intentionally, or with reckless disregard for the truth, and that the statements or omissions were
necessary to support the required findings. Id. at 20 (quoting Franks v. Delaware, 438 U.S. 154,
154-56 (1978)).
Defendant Razo does not contend that the affidavits in support of the applications were
supported by any false statements or material omissions. Thus, there is no basis for the Court to
hold a hearing on the motion. Razo summarizes the affiant’s representations related to the
necessity requirement, offers that the affiant would have had an “incredible wealth of
information, far more than just ‘probable cause,’” made available by the Government’s use of
conventional techniques including confidential sources, surveillance, pen register data, cell-site
locator data, and stored electronic communications, and contends that it was overreaching for the
Government to claim that “necessity require[d] the use of wiretaps to obtain the identity of co-
conspirators and ‘real-time’ information about the drug conspiracy.” (Mot. to Suppress Wire
Intercepts at 6.) From there, Razo summarizes some of the content of the affidavits in support of
the several applications and requests for continuation. According to Razo, the representations
reflect a case that is not complex involving “allegations of a modest conspiracy,” without
charges of a continuing criminal enterprise, racketeering, or money laundering (id. at 7) and only
“common” drugs (id. at 8). Razo suggests that an intercept order is simply not called for in this
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kind of case, especially when the head of the alleged organization, Diaz, and several of his
distributors could have been apprehended and charged (in Razo’s view) without intercepting
communications. (Id. at 8-9.) Razo discusses each of the alternative means available to the
Government to collect data, all of which is also discussed in the Government’s supporting
affidavits (confidential sources, interviews of shipping services, fingerprint analysis, cell-phone
records, pen registers, grand jury subpoenas, pole cameras, trash searches, infiltration attempts,
conventional search warrants, controlled buys, tracking devices, surveillance). In Razo’s view,
all of these techniques, if well employed, would have developed sufficient information to
provide probable cause and determine the scope of the alleged conspiracy. (Id. at 14.) Razo also
complains that the subsequent intercept orders and extension orders were not called for, even if
the initial intercept order was. (Id.)
The Government sees it otherwise. It observes that its objective was “to identify Barry
Diaz’s source(s) of supply for . . . illegal drugs and to dismantle, charge, and convict the entire
network of individuals . . . who supply drugs to, and receive drugs from, Barry Diaz,” not merely
to obtain probable cause to arrest the conspirators known to it as of April 15, the date of the first
application. (Gov’t Response at 5, ECF No. 64.) The Government references the Task Force
Agent’s affidavits and asserts that the Agent reasonably explained the shortcomings of relying
exclusively on traditional investigative tools to discover the scope and character of Diaz’s
sources. (Id. at 6.)
The Government clearly has the better of this argument, particularly in the context of a
second-stage review of the Court’s earlier decision to issue the intercept orders and related
extensions. The Government’s applications and supporting affidavits and exhibits were far more
than “minimally adequate to support the findings made by the issuing judge.” Rivera-Rosario,
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300 F.3d at 19 n.23. The traditional investigative tools used by the Government essentially
revealed that intercept orders would be the most logical means of proceeding with the
investigation. The Government was not required to settle for a limited investigation targeting
only Diaz and his Maine distributors. The Government had probable cause to believe that Diaz
had one or more sources of supply outside of the state and reason to believe that traditional
methods of investigation were not reasonably equal to the task of netting anything more than
couriers. Even with respect to the task of seizing shipments of drugs made by couriers, such as
the Iowa methamphetamine shipment, it is questionable that this could have been achieved
without the use of wire intercepts.
The Task Force Agent reasonably attested that confidential sources and potential
informants were not likely to be able to gain intelligence about Diaz’s sources of supply; that
shipping invoices and packages were not likely to expose anyone other than possibly a courier;
that heavy reliance on search warrants or grand jury witness subpoenas could expose the broader
investigation and prevent agents from learning about Diaz’s sources of supply; that surveillance
and non-intercept phone data, though useful, would not suffice to expose sources of supply, the
nature and timing of drug shipments, or the persons involved; and that the combination of these
and other methods would not be sufficient to divulge the identity of those individuals positioned
upstream from Diaz, the kinds and quantities of contraband drugs they were able to source, and
their means of delivering drugs to and receiving payment from Diaz. Moreover, a longitudinal
review of the intercept orders and continuation orders reflects a gradually developing
investigation with no precipitating event that would have made it unreasonable for interception
to continue with respect to Diaz’s initial two phones or his second two phones.
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CONCLUSION
Based on a thorough review of the Government’s applications for intercept orders and
continuation orders, supporting affidavits and reports, and related exhibits, there clearly existed
reasonable support for the Government’s assertion, and the Court’s finding, that intercept orders
were an appropriate and necessary tool for the development of the investigation to achieve
appropriate law enforcement objectives. Accordingly, I recommend that the Court deny Razo’s
Motion to Suppress Wire Intercepts (ECF No. 57).
NOTICE
A party may file objections to those specified portions of a magistrate
judge’s report or proposed findings or recommended decisions entered pursuant to
28 U.S.C. 636(b)(1)(B) for which de novo review by the district court is sought,
together with a supporting memorandum, and request for oral argument before the
district judge, if any is sought, within fourteen (14) days of being served with a
copy thereof. A responsive memorandum and any request for oral argument
before the district judge shall be filed within fourteen (14) days after the filing of
the objection.
Failure to file a timely objection shall constitute a waiver of the right to de
novo review by the district court and to appeal the district court's order.
/s/ Margaret J. Kravchuk
U.S. Magistrate Judge
October 4, 2012
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