Opinion
CAUSE NO. IP 01-89-CR-1-15 H/F
February 20, 2002
ENTRY ON MOTION TO SUPPRESS
The indictment in this case charges fifteen defendants with conspiring to distribute and to possess with intent to distribute cocaine, methamphetamine, marijuana, and amphetamines, as well as with numerous substantive offenses. After gathering information through other investigative means for many months, the government sought and obtained orders authorizing interception of cellular telephone communications under 18 U.S.C. § 2518, which was enacted as part of Title III of the Omnibus Crime Control and Safe Streets Act of 1968. The government intends to offer at trial extensive evidence from such interceptions.
Defendant Oscar Gomez has moved, on behalf of himself and all other defendants, to suppress all evidence gathered through such interceptions. Gomez argues that the applications failed to comply with 18 U.S.C. § 2518(1)(c), which requires "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." Gomez also argues that the court orders approving the interceptions violated 18 U.S.C. § 2518(3)(c) by failing to make sufficient findings on whether other investigative procedures "have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous."
I. Sufficiency of the Applications
The focus of Gomez's motion is the initial application of March 20, 2001, supported by an affidavit from FBI Special Agent Jo Ann L. Burkhart. Her 60-page affidavit reviewed in detail the results of an investigation that had extended over approximately two years. Her affidavit shows that federal agents had made use of cooperating individuals, undercover agents, physical surveillance, pen register and similar traces of telephone calls, and garbage "covers." Those investigative techniques provided probable cause for the electronic interceptions believed to be instrumental in carrying out a sizable drug distribution conspiracy in Indianapolis.
To comply with § 2518(1)(c), Agent Burkhart's affidavit also addressed in considerable detail the limits of those other investigative techniques as applied to the conspiracy in question. She reviewed the limits of physical surveillance resulting from the targets' efforts and abilities to detect and block such surveillance. Her later affidavits showed that the electronic surveillance confirmed the targets' efforts and abilities to detect and block physical surveillance. Several times the agents monitoring communications heard conversations in which targets accurately identified vehicles that other agents were using at those moments to conduct physical surveillance of them.
Agent Burkhart also set forth and explained persuasively her opinion and the opinions of others in the investigation that interviews and grand jury subpoenas were more likely to compromise the investigation than to assist it. Their opinions were and are reasonable.
Agent Burkhart explained the difficulties in working with cooperating individuals who feared for their safety based on threats that had been made by the targets. (One threat was also made to an undercover officer.) The cooperating individuals had been able to help the investigation by carrying out some controlled and monitored purchases of small quantities of drugs, but they had not been able to provide information about sources, transportation, and storage of drugs, or transportation of drug proceeds back to sources. Cooperating individuals simply had not been able to penetrate the close-knit inner circle of the drug distribution conspiracy. In addition, the fact that most targets speak Spanish imposed limits on effective use of cooperating individuals.
Agent Burkhart also addressed the limits on the use of undercover officers, which were similar to those for cooperating individuals. Two attempts to use undercover officers had been unsuccessful because of the caution of the targets. When undercover officers did get involved, they observed targets who were armed and highly conscious of the possibility of law enforcement surveillance. In addition, target Fidelmar Soto-Nava had made statements to an undercover officer and to a cooperating individual that he would kill a police officer who tried to arrest him, or anyone else who caused his arrest.
Agent Burkhart addressed the use of search warrants and their limits. Some had been used in the investigation with some success. The problem is the difficulty in tying the fruits of such searches to particular individuals.
Agent Burkhart also addressed the use of pen registers and similar devices to keep track of the origins, destinations, and times of numerous telephone calls. Such investigative techniques had provided valuable information, but the results may have limited value at trial. The fact that a telephone call was placed from a particular number to another number at a particular time does not necessarily identify who was speaking, let alone what they spoke about, especially where those involved in drug distribution use telephones registered under the names of other persons to conduct their business. At trial, such evidence can be vulnerable to the defense argument that the government is trying to establish "guilt by association."
The court finds that the initial application was sufficient with respect to the statutory requirement that other investigative techniques have been tried, appear unlikely to succeed or too dangerous. The Seventh Circuit has explained that "`the government's burden of establishing its compliance with [subsection 2518(1)(c)] is not great,' and that the requirement that the government exhaust `normal investigative procedures' be reviewed in a `practical and common-sense fashion.'" United States v. Plescia, 48 F.3d 1452, 1463 (7th Cir. 1995), quoting United States v. Zambrana, 841 F.2d 1320, 1329 (7th Cir. 1988), quoting in turn United States v. Anderson, 542 F.2d 428, 431 (7th Cir. 1976). Agent Burkhart's affidavit in this case was not "boilerplate." It provided a detailed and persuasive explanation of the reasons for her view that other techniques had failed or appeared unlikely to succeed or were too dangerous.
Defendant Gomez points out that the use of other investigative techniques, such as controlled drug buys, was enough to produce strong evidence against Soto-Nava and several other defendants. True enough. Given the nature of the operation, however, the limits of those other techniques were still significant. They were significant with respect to the government's ability to prove the scope of the activity, beyond the relatively small number of controlled buys. Without the interceptions, the government also could reasonably expect a trial to produce arguments that the government's evidence did not distinguish between criminal and innocent actions, and that the government was trying to find "guilt by association."
When evaluating the effectiveness of other investigative techniques, the government and the court are entitled to consider the heavy burden of proof beyond a reasonable doubt and the potential avenues left open for defense. In Plescia, the Seventh Circuit rejected an argument similar to Gomez' argument here, and the court explained:
Even if it were true that the government could have prosecuted Plescia without the tapes, the wiretaps both allowed the government to ascertain the extent and structure of the conspiracy and provided enough evidence to convict these five, the key players in the drug ring. It would have been far more difficult or impossible to determine the extent of their involvement, such as Bonavolante's role as financier, by merely observing transactions from a distance.
United States v. Plescia, 48 F.3d at 1463 (affirming convictions after denial of motion to suppress wiretap evidence); see also United States v. Farmer, 924 F.2d 647, 652 (7th Cir. 1991) (government provided sufficient justification for electronic interceptions). As Judge Bua wrote: "Sections 2518(1)(c) and (3)(c) are not designed to force the government to exhaust all other conceivable investigative procedures before resorting to wiretapping." United States v. Marquez, 686 F. Supp. 1354, 1364 (N.D.Ill. 1988).
Finally defendant Gomez raises a poignant problem. He argues that the government had enough information to shut down the operation by the end of 2000 but chose instead to pursue the electronic interceptions while the operation continued to distribute drugs in the city. The short answer to that point is that it demonstrates why prosecutors' and investigators' jobs are sometimes so stressful.
The government's timing decision can be second-guessed from both directions. If the government stops too early, it may not have enough evidence for a sufficiently powerful prosecution at trial. If it stops too late, it is subject to criticism like that from Gomez. When a judgment call can be criticized from both directions, the person who must make the judgment is usually entitled to some reasonable degree of leeway in either direction.
Ultimately, it is up to the executive branch of the government to make such decisions about just when to step in, arrest, and prosecute based on the evidence already gathered. Under § 2518(3)(c), courts may impose some outer boundaries on the exercise of prosecutorial discretion in deciding when enough is enough. The government's decision here was certainly within reasonable bounds, even if others might disagree about the precise timing.
The same reasoning applies to the government's decision about how long to pursue the electronic interceptions, as addressed in Agent Burkhart's affidavits in support of the applications for extensions of the court orders authorizing the interceptions. In the extension application filed April 20, 2001, she described progress that had been made but also explained the need for further interceptions to identify the sources of cocaine and amphetamine and further details of distribution, as well as the channels for returning money back up the chain of distribution. The court has reviewed all of the applications and affidavits, and finds that all sufficiently addressed the requirements of § 2518(1)(c) for substantially the reasons set forth above concerning the initial application.
II. Sufficiency of Court Determinations
Gomez makes a separate argument with respect to the various court orders authorizing the electronic interceptions. The court orders track the statutory language, finding that "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). Gomez argues that more specific findings were needed, specifying which of the alternatives applied.
Gomez bases this argument on the principles stated by the Tenth Circuit in United States v. Castillo-Garcia, 117 F.3d 1179 (10th Cir. 1997). The court said that "generalities, or statements in the conclusory language of the statute, are insufficient to support a wiretap application." Id. at 1188. Gomez argues that the same principles should apply to the court's findings, so that more than a recitation of the statutory language should be required.
What is required by the statute is a determination that the statutory standard has been met, not the sort of detailed factual findings required under Rule 52 of the Federal Rules of Civil Procedure. Without stronger support for the more detailed findings advocated by Gomez, the court is not convinced that anything more detailed is required from the judge who approves a request.
For the foregoing reasons, the motion of defendant Gomez to suppress evidence derived from court-authorized electronic interceptions is hereby denied.
So ordered.