USA v. Busch et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_____________________________________
UNITED STATES OF AMERICA,
Plaintiff,
v. 09-CR-331A
MICHAEL HERNANDEZ,
Defendant.
_____________________________________
REPORT, RECOMMENDATION AND ORDER
This case, as it relates to defendant Michael Hernandez only, was
referred to the undersigned by the Hon. Richard J. Arcara, in accordance with 28
U.S.C. § 636(b)(1), for all pretrial matters and to hear and report upon dispositive
motions. Dkt. #532.
PRELIMINARY STATEMENT
The defendant, Michael Hernandez (“Hernandez”), along with twenty-eight
others, is charged in a multi-count, Fourth Superseding Indictment (Dkt. #408) with
alleged narcotics trafficking through a continuing criminal enterprise and firearms
offenses. Presently pending is Hernandez’s motion to suppress the conversations
intercepted pursuant to Title III. Dkt. #555. This Court’s Decision and Order with
respect to defendant Hernandez’s non-dispositive discovery motions was previously
filed on November 21, 2012. Dkt. #672. What follows is this Court’s Report,
Recommendation and Order addressing defendant Hernandez’s motion to suppress.
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DISCUSSION AND ANALYSIS
Motion to Suppress Wiretap Evidence
At issue here are the applications for the authorizations to intercept wire
and electronic communications relating to two target telephones. More specifically, with
respect to cellular telephone 716-507-5258, the initial Order was signed by Chief Judge
Skretny authorizing the interception of wire communications on October 9, 2009.
Subsequently, additional Orders were signed by Chief Judge Skretny authorizing both
the continuation of the interception of wire communications and the interception of
electronic communications on November 13, 2009 and December 11, 2009. The
October 9, 2009 application and the November 13, 2009 application were each
accompanied by a lengthy affidavit from Federal Bureau of Investigation (“FBI”) Special
Agent John A. Yervelli, Jr. The December 11, 2009 application was accompanied by a
lengthy affidavit of FBI Special Agent Jason E. Galle. With respect to the second target
telephone, 716-846-9273, Chief Judge Skretny signed the Order authorizing the
interception of wire communications on November 25, 2009 and that application was
accompanied by a lengthy affidavit of FBI Special Agent Jason E. Galle.
In each of the aforementioned affidavits, Special Agents Yervelli and
Galle described in detail a narcotics distribution enterprise principally operated by Javier
Navarro, Christopher Santiago, Jose De Leon, Eric De Leon, and others known and
unknown, involving, inter alia, the financing and distribution of drugs, firearms activities
and the use of violence in furtherance of their criminal enterprise activities. The factual
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allegations set forth in Special Agents Yervelli’s and Galle’s affidavits were derived from
their personal knowledge based upon their participation in the investigation, including
the review of records and documents, such as the Pen register activity related to the
target telephones, as well as information provided to them by confidential human
sources, and other federal and state law enforcement officers. In their affidavits,
Special Agents Yervelli and Galle iterate specific details of drug and firearm activity
undertaken by Javier Navarro, Christopher Santiago and others known and unknown to
law enforcement.
Defendant Hernandez asserts that the wiretap applications
submitted to United States District Judge William M. Skretny failed to satisfy the
necessity requirement and that the government failed to make a sufficiently
particularized showing that routine investigative techniques would not be effective. Dkt.
#555, p.16. In its response, the government asserts that defendant Hernandez lacks
standing to challenge Chief Judge Skretny’s Orders authorizing the interception of wire
and electronic communications because he has not admitted that his voice is heard on
the intercepted calls or that the Orders were directed at him. Dkt. #589, pp.49-51. In
addition, although not raised by defendant Hernandez, the government addresses the
probable cause for the Orders. Id. at pp.52-57. Thereafter, the government addresses
defendant’s primary argument concerning a lack of necessity, relying, in part, on this
Court’s prior finding in a related case, United States v. Eric De Leon-Navarro, Sr., et.
al., 10-CR-188-A, that necessity for these eavesdropping warrants existed. Id. at
pp.57-62. Lastly, although not raised by defendant Hernandez, the government
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addresses minimization, as well as the sealing of the discs containing the intercepted
conversations. Id. at pp.63-68. This Court will only address those arguments
presented by defendant Hernandez and will leave the remaining arguments raised by
other defendants to United States Magistrate Judge Hugh B. Scott to whom the other
defendants’ motions have been referred.
Title 18, United States Code, Section 2518(10)(a) permits any aggrieved
person to move to suppress the contents of any intercepted communication on the
ground that the communication was unlawfully intercepted; the order approving
interception was insufficient on its face; or the interception was not made in conformity
with the interception order. An “aggrieved person” is defined as “a person who was a
party to any intercepted wire, oral, or electronic communication or a person against
whom the interception was directed.” Title 18, United States Code, Section 2510(11).
This provision “is to be construed in accordance with standing requirements usually
applied to suppression claims under the fourth amendment.” United States v. Gallo,
863 F.2d 185, 192 (2d Cir. 1988), cert. denied, 489 U.S. 1083 (1989). Here, defendant
Hernandez was not a named target or interceptee on the Title III interception orders
docketed as 09-MR-88 and 09-MR-103 and he has failed to demonstrate that he is an
aggrieved person sufficient to establish standing to move against the intercept orders.
For those reasons alone, defendant Hernandez’s motion to suppress the wiretap
evidence should be denied.
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Notwithstanding the foregoing, the Court will address defendant
Hernandez’s arguments. Defendant Hernandez argues in conclusory fashion that the
necessity for electronic eavesdropping and the interception of electronic
communications was not sufficiently established prior to the application for the warrant
and further, that it was not established that routine investigative techniques would not
be effective. Dkt. #555, p.16. Specifically, the defendant’s “motion” in its entirety
states:
54) Section 2518(1)(c) of Title 18 of the United States Code
requires that an application for a wiretap order provide “a full
and complete statement as to whether or not other
investigative procedures have been tried and failed or why
they reasonably appear to be unlikely to succeed if tried or
to be too dangerous.”
55) Defendant HERNANDEZ submits that the Government
has failed to meet this necessity requirement, offering
merely boilerplate language linking HERNANDEZ to the
alleged conspiracy.
56) Further, HERNANDEZ alleges that [sic] government has
failed to make a sufficiently particularized showing that
routine investigative techniques would not be effective in
penetrating HERNANDEZ’s role in the conspiracy.
Dkt. #555, p.16.
In their affidavits, Special Agents Yervelli and Galle enumerated multiple
reasons why they believed that normal investigative procedures have been tried and
have failed, reasonably appear unlikely to succeed if continued or tried or are too
dangerous to employ in this investigation. Notwithstanding the foregoing, Special
Agents Yervelli and Galle acknowledge in their affidavits that some traditional
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investigative techniques, such as court-authorized pen registers, physical surveillance,
telephone toll records, interviews, public records and information from confidential
sources, have been probative as to the existence of an ongoing illegal narcotics and
firearms business. However, Special Agents Yervelli and Galle explained that the
investigation had not yielded sufficient evidence or ascertained the identities of all
participants and co-conspirators in the illegal conspiracy, as well as identified the
sources of supply of the powder cocaine and firearms. In their affidavits, Special
Agents Yervelli and Galle set forth in detail each investigative technique used, what
information was revealed and what information was still desired and unable to be
ascertained through those investigative techniques. In addition to the foregoing
investigative techniques employed during the investigation, Special Agents Yervelli and
Galle further explained that the following additional investigative techniques had been
considered, but deemed not likely to succeed at the time: introduction of under cover
law enforcement personnel, interviews of subjects, search warrants, trash pulls and
convening a Federal Grand Jury. Special Agents Yervelli and Galle further iterated that
although the investigation generated substantial evidence against certain individuals,
the full scope of the members of the drug and firearms networks have not been fully
identified, nor had the extensive nature of the distribution cell, the method of drug
supply, the sources of supply in Puerto Rico and Buffalo, the means of financing the
purchase of drugs, the locations where the drugs and proceeds are stored (stash
houses) and the method of disposing of the drug proceeds been ascertained.
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Each of the applications at issue herein was based on affidavits ranging in
length from eighty-six (86) to one hundred twenty-six (126) typewritten pages wherein
Special Agents Yervelli and Galle described in great detail the history of the
investigation to date and information obtained based on use of the above-described
investigative techniques, as well as the reasoning behind the decision not to pursue
certain investigative techniques. In addition, the training and experience of the agent
can be considered in the context of “necessity.” United States v. Fama, 758 F.2d 834,
838 (2d Cir. 1985).
As a threshold matter, the Court notes that Title 18, United States Code,
Section 2518(1)(c) requires that an application for electronic surveillance must 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.” Since the holding in United States v. Torres, 901 F.2d 205 (2d
Cir.), cert. denied, 498 U.S. 906 (1990), addresses the issue raised by the defendant on
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. . . .”
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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 (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, 589 (9 Cir. 1975) (gambling case).th
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
traditional investigative techniques would suffice to expose
the crime.” United States v. Kahn, 415 U.S. 143, 153 n. 12,
94 S.Ct. 977, 983 n. 12, 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, 1282 (2d Cir.
1979) (quoting United States v. Hinton, 543 F.2d 1002, 1011
(2d Cir.), cert. denied, 429 U.S. 980, 97 S.Ct. 493, 50
L.Ed.2d 589 (1976)), cert. denied, 444 U.S. 981, 100 S.Ct.
484, 62 L.Ed.2d 408 (1979), 1019, 100 S.Ct. 674, 62
L.Ed.2d 649 (1980); see also United States v. Fury, 554
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F.2d 522, 530 (2d Cir), cert. denied, 433 U.S. 910, 97 S.Ct.
2978, 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, 226 (1 Cir.)st
(collecting cases), cert. denied, 431 U.S. 960, 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 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, 90 Cong., 2d Sess., 1968 U.S.Codeth
Cong. & Admin.News, p. 2190.
Scibelli, 549 F.2d at 226 (citations omitted).
Torres, 901 F.2d at 231-232) (brackets included); see also Diaz, 176 F.2d at 111.
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As in Torres, the defendant’s suggestion that traditional law enforcement
methods had proven successful and could continue to advance the investigation,
thereby negating the need for interception of electronic communications, is
unpersuasive. Giving proper deference to Chief Judge Skretny’s review and
acceptance of the extensive affidavits of Special Agent John A. Yervelli, Jr. and Special
Agent Jason E. Galle in support of the applications for the intercept orders and
continuation thereof, it is once again concluded that Chief Judge Skretny properly found
that conventional investigative techniques had been tried and failed and that
alternatives to wire interception would be unlikely to succeed or would be too
dangerous, thereby necessitating the intercept orders and extensions thereto.
Accordingly, it is recommended that this aspect of defendant’s motion to suppress 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 fourteen (14) days after receipt of a copy of this
Report, Recommendation and Order in accordance with the above statute,
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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 (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 (1985); Wesolek, et al. v. Canadair Ltd., et al., 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.
DATED: Buffalo, New York
November 27, 2012
s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge
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