U.S. v. Quintero

Full title: UNITED STATES OF AMERICA, Plaintiff, v. ARNULFO QUINTERO, et al.…

Court: United States District Court, N.D. California

Date published: Feb 11, 1999

No: CR 97-0097-FMS (EDL) (N.D. Cal. Feb. 11, 1999)

Opinion

No: CR 97-0097-FMS (EDL)

February 11, 1999

REPORT AND RECOMMENDATION DENYING DEFENDANTS' MOTION TO SUPPRESS ELECTRONIC SURVEILLANCE

ELIZABETH D. LAPORTE, United States Magistrate Judge

Procedural Background

Defendants move to suppress evidence obtained by the government from a wiretap of telephone lines used regularly by Arnulfo Quintero. The government charged Quintero and twelve co-Defendants with conspiracy to manufacture, distribute and possess with the intent to distribute methamphetamine, aiding and abetting others in the commission of those crimes, possessing listed chemicals with the intent to commit those crimes, using telephones to facilitate those crimes and using a firearm during and in relation to the commission of those crimes in violation of 21 U.S.C. § 841(a)(1), (d), 843(b), 846 and 18 U.S.C. § 924(c). Defendants contend that Special Agent (SA) Mark Snyder of the Drug Enforcement Administration (DEA) intentionally or recklessly made material misstatements and omissions in his affidavit in support of the wiretap.

As a result of the serious intrusion on privacy occasioned by wiretaps, the government must show necessity as a prerequisite to obtaining authorization to intercept wire communications. 18 U.S.C. § 2518(3)(c.) Thus, in addition to probable cause, a district court must find 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." Id.

Defendants claim that SA Snyder's affidavit concealed the government's successful use of traditional techniques, such as employing informants, to investigate the Quinteros. As a result, they contend, Judge Legge was misled into finding that the interception of wire communications was necessary because normal investigative techniques had failed or reasonably appeared unlikely to succeed. Accordingly, Defendants moved to suppress the fruits of the wiretap based on Franks v. Delaware, 438 U.S. 154 (1978), and its progeny.

By order filed July 17, 1998, Judge Fern M. Smith referred Defendants' motion to suppress to a magistrate judge to conduct an evidentiary hearing with respect to five issues of alleged misstatements or omissions from the wiretap affidavit. On December 3 and 4, 1998, United States Magistrate Judge Elizabeth D. Laporte held the evidentiary hearing.

At the hearing, SA Snyder, informant Cecillio (Rick) DelaO (referred to as "CS-2" in Snyder's affidavit) and Detective Joseph Heath of the Santa Rosa Police Department testified. In addition, the parties introduced numerous exhibits, consisting of SA Snyder's affidavit in support of the wiretap, Det. Heath's affidavit in support of search warrants for various locations (executed on April 3, 1997), and investigative reports prepared by SA Snyder, Det. Heath and other officers who worked on the investigation.

Summary of Factual Background

In January 1996, the DEA initiated a criminal investigation into the suspected manufacture and distribution of methamphetamine by Defendant Arnulfo Quintero and his associates. SA Snyder supervised the investigation with the assistance of Det. Heath and case agents from other agencies.

The goals of the investigation were: (a) to identify all individuals who were members of the Quintero organization involved in the manufacture and distribution of methamphetamine; (b) to identify the clandestine laboratories being used by the Quintero organization, including their locations and method of manufacturing; (c) to identify the sources of supply, transportation routes and storage locations for the precursor chemicals used to manufacture methamphetamine; (d) to discover the distribution network used by the Quintero organization; and (e) to ascertain the financial dealings of the Quintero organization, including the destination of proceeds from the distribution of narcotics.

In approximately February 1996, the Quintero investigation became a collective effort of the United States Attorney's Office's Organized Crime Drug Enforcement Task Force (OCDETF). OCDETF is an association of law enforcement agencies that cooperate under the auspices of the United States Attorney in investigations of suspected organized criminal drug-related activity. The cooperating law enforcement agencies in the Quintero investigation were: the DEA, the Santa Rosa Police, the Sonoma County Sheriff, the California Bureau of Narcotic Enforcement (BNE), the Marshall Service and the Internal Revenue's Criminal Investigation Division. The Assistant United States Attorney (AUSA) assigned to the investigation was Dave Hall in San Francisco.

The traditional investigative techniques used by law enforcement agents and officers in the Quintero Investigation included the following:

— Confidential informants;

— Undercover agents;

— Physical surveillance;

— Pen registers and trap and trace devices; and

— Telephone toll records.

In November 1996, SA Snyder decided to seek the court's authority to intercept wire communications as part of the Quintero investigation. Arnulfo Quintero left the country for Mexico in late November 1996, however, and did not return until late January 1997. On February 24, 1997, SA Snyder submitted to Judge Legge an affidavit in support of his application to wiretap telephone lines used regularly by Arnulfo Quintero.

In his affidavit, SA Snyder addressed the issue of the failure of traditional investigative techniques to date and the likelihood that such techniques reasonably would continue to fail in the future. Specifically, SA Snyder discussed the limitations of attempts to infiltrate Quintero's organization through the use of informants and undercover agents. The affidavit did show certain successes, such as obtaining the cooperation of an informant (DelaO) who was close to the Quintero organization, and successfully introducing an undercover officer to Homar Quintero for purchases of methamphetamine. Nonetheless, the affidavit stated that the investigators had only been able to learn the roles of members within the operational cell known to DelaO and the undercover agent. SA Snyder also described the limitations of other techniques, such as physical surveillance and pen registers. Finally, the affidavit stated that no witnesses could be expected to provide useful information to a grand jury and that the execution of one or more search warrants could compromise the investigation.

On the basis of the February 24, 1997 application and affidavit, Judge Legge authorized the use of wiretaps on Quintero's telephone lines. Judge Legge extended the wiretap by a second order on April 3, 1997. The Quintero investigation culminated in the indictment issued on April 3, 1997 and the arrests of the Defendants and searches of many locations on April 15, 1997.

Defendants' core contention in their motion to suppress is that the law enforcement agents and officers failed to exhaust traditional investigative techniques before obtaining the wiretaps. Defendants argue that the government already had obtained and would continue to obtain a significant amount of highly useful information from DelaO and informant Ignacio Rocha (referred to as "CS-1" in Snyder's affidavit), as well as other informants and undercover agents not mentioned or downplayed in the affidavit. Therefore, Defendants urge that interception of the telephone lines was not necessary.

Judge Smith focused the hearing on five issues of alleged misstatements or omissions. The findings of fact and conclusions of law below are organized according to those five issues. In addition, this Report addresses certain additional misstatements and omissions that Defendants contend should be considered together with those five issues in making the ultimate determination of whether the affidavit contained material misstatements or omissions.

Findings of Fact¹

1 References to the transcript of the evidentiary hearing in this matter are designated "RT," followed by citation to the relevant page number. References to the exhibits introduced at the hearing are designated "BN," followed by the number(s) assigned to those pages in discovery, as noted on each page of the exhibits.

(1) The omission of information about and from three [formerly, eight] of the twelve informants used in the investigation of the Quintero organization.

1. In their original motion to suppress, Defendants argued that eight informants should have been disclosed in the wiretap affidavit: SOI(1) and SOI(2) (discussed in a report by SA Snyder at BN 13770); CS-10, CS-11, CS-15, CS-16 and a "citizen informant," who gave information about cars at Todd Beaugrand's house (all of whom are described in Det. Heath's master search warrant affidavit); and Ignacio Rocha's SOI(2). (See Defs.' Memorandum of Points and Authorities in Support of Motion to Suppress Evidence Obtained by Electronic Surveillance at 23-26.) The omission of information about and from these individuals was the first subject matter area set out for the Franks hearing in Judge Smith's July 17, 1998 order.

2. Det. Heath's master search warrant affidavit (completed in April 1997) reported the existence of fifteen numbered informants who had given information about Quintero family members and associates. Det. Heath numbered these informants CS-1 through 16, actually numbering one informant twice (CS-5 and CS-12 being the same person). (BN 258-385.)

3. SA Snyder informed the court of five of the numbered informants discussed by Det. Heath in his affidavit. Those five as designated by Det. Heath's numbers are CS-1,6,8,9 and 13. (RT 328-29, 388-89; BN 13, 272.)

4. Following the hearing, Defendants narrowed their focus to the omission of only three informants: the SOI(1) and SOI(2) identified in a report by SA Snyder at BN 13770 and CS-16. Defendants no longer contend that the omission of the other informants was improper or misleading.

5. At the hearing, Defendants did not ask any questions about SOI(1) and SOI(2), despite the opportunity to do so. Defendants did ask questions about CS-16.

6. As they did not elicit any testimony about SOI(1) or SOI(2), Defendants now rely on a single Report of

Investigation by SA Snyder to support their argument about these two informants. (See Defendants' Supplemental Proposed Findings of Fact.) That report discusses a single interview of these two sources by Det. Bertoli in December 1996. (BN 13770-71.)

7. The report states that SOI(1) told Det. Bertoli that Michael Miller receives two to three pounds a week of methamphetamine from "Jose," who lives on a ranch in Santa Rosa and maintains fighting roosters there; SA Snyder and Det.

Bertoli believed "Jose" to be Jose Quintero. (BN 13770.) SOI(1) stated that Jose drove a beige minivan in which he carried methamphetamine and currency. (BN 13770.) SOI(1) also told Det. Bertoli that he knew "Homar," who distributed large quantities of methamphetamine and drove a black Taurus; SA Snyder and Det. Bertoli believed "Homar" to be Homar Quintero. SOI(1) said that Michael Miller worked on the Taurus for Homar. (BN 13770.) SOI(1) also said that Homar made many trips between Santa Rosa and Los Angeles to pick up narcotics. (BN 13771.)

8. SOI(2) told Det. Bertoli that Michael Miller was a welder and metal fabricator who had made metal tubes for Jose Quintero to use in burying methamphetamine and currency underthe floor of his barn. (BN 13770.) SOI(2) said that Jose had a hidden compartment under the seat of the beige minivan, which could hold two to three pounds of methamphetamine, and that Homar Quintero had a hidden compartment in the trunk of his Taurus. (BN 13770-71.) Agents knew Miller's address and Homar Quintero had been seen at Miller's house on numerous occasions. (BN 13770.)

9. CS-16 gave information regarding Michael Miller. CS-16 told Det. McIntire that Michael Miller purchased up to one pound quantities of methamphetamine from a subject identified as "Jose" who drove a minivan like Jose Quintero's, and that Miller worked on Jose's vehicles and constructed hidden compartments in them. (BN 367-68.) Det. McIntire saw Jose Quintero's truck at Michael Miller's residence. (BN 367.) 10. Det. McIntire did not know whether CS-16 was reliable. He believed CS-16 to be potentially biased as a relative of Michael Miller. Similarly, SA Snyder suspected that CS-16 was a disgruntled relative of dubious credibility. (RT 346-47; BN 367-68.) 11. In his wiretap affidavit, SA Snyder did not reveal the existence of these three informants, nor did he disclose any of the information obtained from them regarding Michael Miller and the hidden compartments in Quintero vehicles. 12. As noted above, Defendants no longer argue that the affidavit should have included information about other undisclosed informants. The evidence presented at the hearing about the remaining informants established good reasons for their exclusion, as follows. 13. Det. Heath's CS-2 and CS-3 gave information to local law enforcement officers about Raul Quintero's narcotic activities in 1990. SA Snyder never knew the identity of CS-2 or CS-3. (RT 331-34; BN 273-74.)

14. Det. Heath's CS-4, whose identity was known to SA Snyder, gave information regarding cocaine trafficking in 1992 by Homar and Mario Quintero. CS-4 had refused to continue to act as an informant for any governmental agency by the time that SA Snyder submitted the affidavit. (RT 334-35; BN 277.)

15. Det. Heath's CS 5 (also known as CS-12), whose identity was known to SA Snyder, gave information regarding narcotics activities by Homar and Arturo Quintero in 1994. This informant was an owner of a large rural piece of property who had received information from others about the narcotics activity on his land. The Quinteros moved away from his land shortly after this informant spoke to agents. Thereafter, the informant did not obtain any further information regarding narcotics. (RT 202-04, 337; BN 280, 338.) (This information led agents to visit the land, where they found that the Quinteros had moved without leaving any chemical evidence behind, as set forth below with respect to issue number 2, finding number 46.)

16. Det. Heath's CS-7 gave information to the San Pablo Police that led to the seizure of a methamphetamine laboratory in Richmond and the arrest of Rocha. The San Pablo Police would not divulge this informant's identity to SA Snyder. SA Snyder believed that CS-7 did not have information about the Quinteros. (RT 36, 338, 535-36; BN 286-87.)

17. Det. Heath's CS-10 was an untested informant, who gave information to the Santa Rosa Police in 1996 regarding sales of narcotics by Nadia Garcia and by Arturo Quintero to Nadia Garcia. SA Snyder was unable to determine the identity of this informant. (RT 339-40, 397, 540-41; BN 297-98.)

18. Det. Heath's CS-11 gave information in 1996 regarding narcotics trafficking between Mario Quintero and Ryan Babbino. SA Snyder was unable to determine the identity of this informant. (RT 340, 533-34; BN 324-26.)

19. SA Snyder was able to determine that the informants designated by Det. Heath as CS-2, CS-3, CS-10 and CS-11 gave information to either the Santa Rosa Police or the Sonoma County Sheriff and that in each instance the agency did not keep any record of the identity of the informant. SA Snyder learned the identities of the individual law enforcement officers who had used the informants. Snyder could not learn the identities of the informants from those officers, however, because in one case the officer had died and in another case the officer could not remember the informant's identity. (RT 331-32, 340-43.) 20. Det. Heath's CS-14 gave information in 1996 about Todd Beaugrand. SA Snyder knew CS-14's identity. CS-14 lived near Mr. Beaugrand and reported vehicle traffic in front of Beaugrand's house. CS-14 was not a member of the criminal organization. The only information she possessed was descriptions of people and automobiles in front of Beaugrand's house. (RT 343-45; BN 339-40.)

21. Det. Heath's CS-15 gave information in 1995 about narcotics activities between Todd Beaugrand and a person named "Jaime." SA Snyder knew this informant's identity, but determined that "Jaime" was not the Jaime Andrade who was a member of the Quintero organization. (RT 345-46; BN 362.)

22. The Quintero organization being investigated had changed sometime in 1994. At the time that SA Snyder submitted the affidavit, Arturo Quintero, the organization's former head, was no longer an active member. He was a fugitive hiding in Mexico. Raul Quintero was also a fugitive in Mexico, with a reduced role in the organization, although he still had some involvement around the time of CS-1's debriefing in early 1996. (RT 537-38.) Furthermore, the focus of the organization was now primarily the manufacture and distribution of methamphetamine, rather than cocaine. (RT 326-27; 374-79.)

23. Many, if not all, of the members of the organization had multiple sources for narcotics. The existence of such multiple sources can indicate the presence of multiple separate conspiracies, i.e., a member of the Quintero organization would simultaneously participate in a separate conspiracy in which he dealt with someone outside the Quintero organization for narcotics. (RT 224, 348-49.)

24. SA Snyder believed that the information given by many of the informants designated by Det. Heath in Heath's affidavit which Snyder did not cover in his affidavit related to conspiracies that were outside of the Quintero organization 26 as of 1996-97 — the focus of the affidavit. (RT 332-46, 348-49.)

(2) The statement at BN 102 that Arnulfo Quintero had refused to provide CS-2, Rick DelaO, with certain information about the Quintero organization, and the omission of information demonstrating Rick DelaO's close association with the Quinteros.

1. The affidavit reports that each time DelaO inquired (emphasis added) of Arnulfo Quintero regarding different aspects of the Quintero organization, such as his manufacturing operation and chemical sources of supply, Quintero refused to provide any information. (BN 102.)

2. The affidavit also reports that DelaO is rarely (emphasis added) told any particular details about the organization's activities apart from the particular transaction in which he was involved at the time. (BN 101-02.)

3. The affidavit states that DelaO reported that Arnulfo Quintero used digital pagers and cellular telephones in the narcotics business and that DelaO successfully introduced an undercover officer to Homar Quintero to make controlled purchases of methamphetamine. (BN 22.)

4. The affidavit reports that on March 26, 1996, DelaO observed Arnulfo Quintero remove approximately one pound of methamphetamine from behind the headlight of Quintero's truck to provide the drug to Mario Manzo Quintero. (BN 37.)

5. The affidavit reports that on July 10, 1996, Arnulfo Quintero told DelaO that he had been paged by a person who used to live in Santa Rosa, but now lives in Missouri. Quintero said this person regularly purchased methamphetamine from him and travelled to northern California to buy pound quantities of the drug. (BN 58.)

6. The affidavit reports that Arnulfo Quintero told DelaO that he was sending large sums of U.S. currency to relatives in Mexico by having female relatives carry the cash. Quintero also inquired of DelaO if he could obtain Freon to use in the manufacture of methamphetamine. (BN 67.)

7. The affidavit reports that on October 6, 1996, Arnulfo Quintero asked DelaO to find a location where methamphetamine could be manufactured for a $4000 rent. (BN 69.)

8. The affidavit reports that DelaO introduced an undercover officer to Arnulfo Quintero for the purpose of providing Freon to Quintero. They struck a deal wherein Quintero would get a 55 gallon drum of R-115 Freon for $500 and an ounce of methamphetamine. Quintero said he would deliver the methamphetamine to DelaO's house, and the Freon would be stored at DelaO's house. (BN 71.)

9. The affidavit reports that on November 26, 1996, Homar Quintero told DelaO that Arnulfo Quintero had traveled to Mexico and was staying with their brother, Arturo, in Los Reyes, Michoacan. Homar gave DelaO the telephone number in Mexico where Arnulfo might be reached and indicated that Arnulfo usually stayed in Mexico for about one month. (BN 72-73.)

10. The affidavit reports that on January 25, 1997, Arturo Quintero told DelaO that Homar had left the ranch in Los Reyes to return to Santa Rosa and that Arnulfo would be leaving shortly. Arturo told DelaO that Arnulfo and Homar had recently manufactured a large batch of methamphetamine. (BN 73-74.)

11. The affidavit reports that on January 30, 1997, upon Homar Quintero's return to Santa Rosa, he told DelaO of the recent large manufacture of methamphetamine in Mexico and of Arnulfo making arrangements in Tijuana to smuggle it into the United States. Homar said Arnulfo had taken more than $100,000 into Mexico. (BN 74).

12. The affidavit reports that on February 2, 1997, upon Arnulfo Quintero's return to Santa Rosa, he told DelaO that he had been in Mexico where he had just manufactured a large amount of methamphetamine. Arnulfo asked DelaO to obtain four (4) canisters of Freon. (BN 75.)

13. The affidavit reports that on February 5, 1997, Arnulfo Quintero told DelaO that he had found a manufacturing site in northern California. Arnulfo said that the site was a couple of hours away, but would not give its exact location. (BN 76.)

14. The affidavit reports that Arnulfo Quintero told DelaO that he carried two digital pagers. (BN 80.)

15. SA Mark Snyder testified that he reported proposed facts numbered above as 3 through 14 because he felt that they were relevant to show that DelaO received significant information from Arnulfo Quintero and other family members, but that the nature of the information provided to DelaO rarely went to highly specific areas. SA Snyder also testified that he wanted to show that during the vast majority of the large number of contacts between DelaO and Arnulfo Quintero, Quintero gave DelaO little or no information. (RT 353-54.)

16. In June 1996, SA Snyder and the other agents on the Quintero investigation mutually agreed that they wanted to get DelaO more involved in the investigation by making him an official DEA informant. The agents believed that DelaO had shown that he was credible and had good potential to assist the agents to infiltrate the Quintero organization. (RT 193-95.)

17. Arnulfo Quintero and his family felt comfortable with DelaO. There was no indication that any member of the Quintero organization suspected that he was an informant, nor did they ever search him for a wire. (RT 435-36.)

18. Throughout 1996 and continuing until April 1997, DelaO had a close personal association, as well as a drug purchasing relationship, with the following members of the Quintero organization: Homar Quintero (RT 205), Jose Quintero (RT 425), Arnulfo Quintero (RT 220, 411), and fugitive Arturo Quintero (RT 218, 375). (See generally RT 200, 425, 435.)

19. Even when the Quintero brothers had conflicts amongst themselves, they all talked to DelaO and maintained a friendly relationship with him. The Quintero brothers confided in DelaO about some matters that they even kept from each other. (RT 441.)

20. During the period between June 1996 and February 24, 1997, DelaO spoke with Arnulfo Quintero several times each week. The contacts between Arnulfo Quintero and DelaO related to their common social interests in cockfighting and abalone diving, as well as drug transactions. Even when they were meeting to make a drug transaction, they discussed personal and family matters and interacted as friends. (RT 220, 222, 224, 411.)

21. DelaO was in regular contact on a continual basis with the associates, brothers and cousins of Arnulfo Quintero. (RT 220-21.) DelaO was in at least weekly contact with most of them. (RT 221.)

22. DelaO had at least as close a relationship with Homar Quintero as with Arnulfo; he found Homar even more candid than Arnulfo. (RT 411-12.) DelaO called Homar Quintero regularly. (RT 412.)

23. Arnulfo Quintero visited DelaO at his home approximately 20 times. (RT 411.) DelaO invited all of the Quintero brothers to his home for dinner at least once and had Arnulfo Quintero over for dinner a few times when DelaO cooked abalone that he had caught. (RT 405, 411.)

24. Arnulfo Quintero and DelaO used the terms "brother" and "cousin" to refer to each other. (RT 240-41, 251; BN 12766, 12768, 12769.) Among Mexicans, these terms denote a close friend when used, as here, to refer to someone who is not a blood relative. (RT 239.)

25. At least monthly, DelaO attended cockfights with the Quinteros at Arnulfo Quintero's invitation. (RT 221-22.) DelaO traveled with Arnulfo Quintero to these events and sat with him. (RT 222.)

26. The Quintero brothers regularly invited DelaO to social gatherings at their ranches. (RT 405, 410, 412, 415.)

27. At no time during the investigation was DelaO refused when he personally initiated a controlled buy from anyone in the Quintero organization, except for reasons of unavailability or convenience. (RT 215-17.)

28. On April 11, 1996, DelaO arranged with Arnulfo Quintero to sell methamphetamine to another informant, CS-3 (L. Vargas), but Arnulfo Quintero sent Salvador Manzo Quintero to deliver the drugs instead of appearing himself. Arnulfo said he did not want to meet DelaO's friends or sell dope to them. The wiretap affidavit notes this failed attempt by DelaO to introduce another agent to Arnulfo Quintero. (RT 194, 437.)

29. Following this refusal, DelaO successfully introduced Arnulfo Quintero to undercover agent Brown, who posed as a Freon supplier, after Quintero asked for DelaO's help in obtaining Freon for his manufacturing operation. (RT 245-46, 439-40.) SA Snyder discussed this introduction, which occurred on October 10, 1996, in the "Surveillance" section of the wiretap affidavit at BN 70-71.

30. Another successful introduction to a different brother occurred on October 24, 1996, when DelaO introduced Sonoma County Sheriff's Det. Matt McCaffrey, working undercover, to Juan Quintero for future methamphetamine transactions. (BN 354, 13746.) SA Snyder omitted this introduction from the affidavit.

31. On November 2, 1996, DelaO successfully introduced Sonoma County Sheriff's Det. Robert McIntire, working undercover, to Francisco Alejandes. (RT 251-52) This introduction resulted in three sales charged in the indictment against Mr. Alejandes.

32. On September 4, 1996, Arnulfo Quintero asked DelaO to help him find someone to assist him with cooking methamphetamine. DelaO mentioned that his cousin, Joe Barajas, might be that person. (RT 223; BN 12766-68.)

33. On three separate occasions, the last occurring only weeks before the wiretap, Arnulfo Quintero asked DelaO to find him a rural location for a methamphetamine lab. (RT 236-37.) SA Snyder only disclosed one such request (in October 1996) in the wiretap affidavit. (BN 69.)

34. On December 11, 1996, Juan Quintero asked DelaO if he could buy the Freon that DelaO was holding for Arnulfo Quintero. RT 227; BN 362.)

35. On December 6, 1996, and again on December 23, 1996, Jose Quintero asked DelaO to find a remote ranch location where he could cook methamphetamine. (RT 237; BN 361, 441.)

36. Jose Quintero asked DelaO to keep the fact that he was looking for a lab site "under his hat," due to conflicts between the Quintero brothers. (RT 441.)

37. Jose Quintero called DelaO in late April 1996 and asked if DelaO had a large scale Jose could borrow, saying "[w]e have some big stuff to break down." (RT 528; BN 311.)

38. On August 22, 1996 DelaO was present at the Todd Road Ranch in Santa Rosa to purchase methamphetamine from Jose Quintero when he observed Jose retrieve the narcotics from a hiding place in the wall of the barn. DelaO also saw Jose Quintero sell one pound of methamphetamine to two other men, who Quintero said were from Arizona. (RT 232-33, 265; BN 13688-89.)

39. Through his close relationship with the Quinteros, DelaO became aware of some of the roles played by different members of organization and he relayed this information to SA Snyder. (RT 224.) DelaO advised SA Snyder that he believed that Jaime Andrade and Francisco Alejandes were distributors for Arnulfo Quintero (RT 224); that Homar Quintero had multiple sources, including Arnulfo Quintero, but also ran a separate drug business and was supplied by a source in the San Jose area; and that Juan Quintero cooked methamphetamine. (BN 362; RT 224-25.)

40. DelaO identified two "stash locations" at Yuba Drive and Todd Road, and might have mentioned that the Quinteros used other locations as well. SA Snyder was able to corroborate that these two locations were being used by the Quinteros to store methamphetamine and currency. (RT 207-09.) SA Snyder omitted this information from the affidavit, stating: "I also do not know where Quintero's `safe houses' or `stash houses' are located." (BN 106.)

41. On one occasion, DelaO was allowed to see a hidden compartment, which was used to store drugs, in one of Arnulfo Quintero's cars. (RT 420-21.)

42. DelaO made at least fourteen controlled methamphetamine buys from Arnulfo Quintero and other members of the Quintero organization between June 19, 1996 and February 24, 1997. (RT 210-11.) SA Snyder reported only six controlled buys by DelaO. (BN 21.)

43. After DelaO became a DEA informant, he was able to make controlled buys from another Quintero associate, Jaime Andrade, from whom he does not believe he had bought drugs before. (RT 418.)

44. In 1994 and 1996, DelaO had heard that there were places to cook utilized by the Quinteros, but he did not learn the specifics of when, where or how much. (RT 407-08; 426.)

45. Prior to June 19, 1996, Arnulfo Quintero told DelaO that he had a lab located somewhere in Sebastapol, California. But Arnulfo Quintero did not tell DelaO any more specifically where the lab was located, nor had DelaO ever been there. (RT 201; BN 331, 13637)

46. Before DelaO informed agents that a lab might exist in Sebastopol, a Sonoma County Sheriff informant told agents that some Quinteros had been living on a ranch in Sebastopol. Officers went to the location and found that the Quinteros had moved, leaving several buckets that had an odor associated with the manufacture of methamphetamine, but no chemical evidence. (RT 201-03.)

47. During Arnulfo Quintero's initial meeting with Det. Brown to purchase Freon on October 10, 1996, Arnulfo Quintero stated his intent to use the Freon to "make dope" in front of both DelaO and Brown. (RT 246-47; BN 13742.) Although SA Snyder disclosed the transaction in the affidavit, he omitted this statement.

48. Jaime Andrade told DelaO that members of the Quintero drug organization used the barn at 663 Todd Road, among other places, to sell drugs. (RT 206; BN 13638.)

49. Jaime Andrade told DelaO that he had a methamphetamine source in Los Angeles. (RT 206; BN 13638.)

50. Homar Quintero confided to DelaO that his primary source for methamphetamine was "a friend in the San Jose area." (RT 205:14-17.)

51. About September 7, 1996, Arturo Quintero told DelaO by telephone from Mexico that he planned to return to northern California in two or three months and would contact DelaO when he arrived.

52. On January 30, 1997, Homar Quintero told DelaO that Arturo Quintero was coming back to the U.S. Homar also revealed the false name, social security number and date of birth that Arturo would use. (RT 244-45; BN 13780.)

53. On January 30, 1997, Homar Quintero told DelaO that Arnulfo Quintero had cooked methamphetamine in Mexico (which was disclosed in the wiretap affidavit at BN 74). In addition, Homar told DelaO that precursor chemicals were easier and cheaper to get in Mexico. (RT 243; BN 13780.)

54. On January 30, 1997, Homar Quintero also told DelaO that Arnulfo Quintero was building a house in Los Reyes, Michoacan with some of the money that he had transported to Mexico. (RT 243; BN 13780.) 55. In early February 1997, Arnulfo Quintero told DelaO that he had developed a new cocaine source in Mexico (RT 263-64), and would be buying cocaine from the new supplier for $10,000 per kilogram. (RT 264.)

56. On about February 6, 1997, Arturo Quintero confirmed his new alias to DelaO in a telephone conversation and told DelaO that he would contact him when he was coming to Santa Rosa. (RT 409-10; BN 13786.)

57. On about February 6, 1997, Arnulfo Quintero told DelaO that he had a lab site, but still wanted DelaO to find him a place to set up another lab. (RT 237; BN 13786.)

58. At the hearing, DelaO agreed with SA Snyder's assertion in the affidavit that he was rarely told any particular detail about the organization and its activities apart from the particular transaction in which he was involved. (RT 467.)

59. At the hearing, DelaO agreed with SA Snyder's assertion in the affidavit that each time he inquired of Arnulfo Quintero regarding different aspects of his organization, such as manufacturing and chemical sources of supply, Arnulfo Quintero refused to provide any information. (RT 469.)

60. DelaO did not generally ask the Quinteros direct questions seeking information about sensitive subjects such as the locations of labs. Law enforcement agents told DelaO not to ask too many questions because doing so might make the Quinteros suspicious of him. (RT 434.) DelaO was told explicitly "not to pry," but rather to "keep his ears open" and report any helpful information that he gleaned by listening to conversations among the Quinteros. (RT 416-17, 435.)

61. DelaO received much of the information related to him by Arnulfo Quintero and other family members by overhearing conversations. (RT 469.)

62. Det. Heath believes that DelaO gained most of his information by hearing conversations between others and then participating in some of those conversations. (RT 539.)

63. On one occasion, DelaO did ask a member of the organization a question regarding his activities and received a response. Specifically, on December 11, 1996, DelaO asked Juan Quintero if he was manufacturing methamphetamine. Juan Quintero replied that he was cooking methamphetamine in the Windsor area of Sonoma County and that he was looking to buy other chemicals. (RT 225, 228, 528; BN 362.)

64. Arnulfo Quintero and other members of the organization indicated that the Quintero brothers each had at least some sources independent from the others' sources, but did not give DelaO detailed information about these independent sources. (RT 460-61.) For example, they did not identify their sources by name or address. But they did give him the following information: Jaime Andrade told DelaO that he had a source in Los Angeles (RT 206); Homar Quintero told DelaO that his primary source was a friend in San Jose (RT 205); Arnulfo Quintero told DelaO that he had a new source of cocaine in Mexico charging $10,000 per kilo; and Juan Quintero told DelaO that he manufactured methamphetamine himself in Windsor. (BN 362).

65. As stated in his affidavit, SA Snyder was very experienced in investigating the manufacture and distribution of methamphetamine. (RT 25-26.)

66. The vast majority of DelaO's telephone calls with Quintero organization members were monitored and taped. (BN 21-22.) This was stated in the affidavit. (BN 21.) 67. After June 19, 1996, at every meeting with a member of the Quintero family, DelaO wore a transmitting device (a "wire"). (RT 435.)

68. A Spanish-speaking officer monitored those conversations and related them to SA Snyder. In addition, SA Snyder or Det. Bertoli debriefed DelaO after each meeting or conversation. (RT 242-43, 416.)

69. Det. Heath, who had been investigating the Quinteros since 1990 (RT 486), worked closely and cooperatively with SA Snyder on the Quintero investigation. (RT 71.) 70. Throughout much of the investigation, Det. Heath and SA Snyder communicated daily. (RT 481.)

71. Det. Heath was involved in helping SA Snyder to decide what facts he needed to include in the wiretap affidavit, coordinating the sources of information that he needed for the affidavit (RT 63, 483) and serving as a source of information himself (RT 484). 72. Det. Heath testified that DelaO was told of certain aspects of the organization, but not the full extent. (RT 539.)

73. Det. Heath made available to SA Snyder all of the information, in his reports and orally, which Det. Heath had developed in the course of his investigation of the Quinteros. (RT 484-85.)

74. Among the documents that Det. Heath shared with SA Snyder prior to submission of the wiretap affidavit was Det. Heath's Master Search Warrant Affidavit ("MSW Affidavit"). (RT 496.) Det. Heath drafted his MSW Affidavit as a report in progress, chronicling each incident as it occurred or as he learned about it, starting in January 1996. (RT 488, 495.)

75. Each time SA Snyder sought out information for the wiretap affidavit from another officer, he also reviewed the corresponding report. (RT 66.)

76. SA Snyder gathered and organized copies of all reports he knew about pertaining to the Quintero investigation. (RT 64-65.) He believes that he had reports about every incident in the investigation. (RT 64-65.)

77. In only one instance did an agency decline to provide information that SA Snyder requested. The San Pablo Police Department refused to disclose the identity of CS-7 in Det. Heath's Master Search Warrant. (RT 36.)

78. The case agents for the law enforcement agencies that were primarily involved in the Quintero investigation, along with the DEA, knew that SA Snyder was in the process of drafting a wiretap affidavit in the months prior to February 24, 1997. (RT 60-61.)

79. Until the wiretap affidavit was finally submitted to Judge Legge on February 24, 1997, SA Snyder had the opportunity to make any changes that he found necessary. (RT 70-71.)

(3) The statement at BN 19 that CS-1, Ignacio Rocha, told investigators that Arnulfo Quintero obtained precursor chemicals from "unknown sources" in Los Angeles, and the omission of the identity of and information about Ivan Mendoza, whom Rocha had identified to investigators as Quintero's Los Angeles source, including information about Mendoza's sources in Mexico.

1. Ignacio Rocha (CS-1 in the wiretap affidavit) was arrested in November 1995 in an operating methamphetamine laboratory in Richmond, California. (RT 83.)

2. Rocha agreed to provide information to law enforcement and was first debriefed by Det. Lewellyn of the San Pablo Police and SA Richard Russell of BNE. (RT 84.)

3. Rocha was debriefed by SA Snyder and Det. Heath on February 1, 1996. (RT 86.) He provided agents with detailed information about the Quintero organization, including the general location of a current laboratory (RT 89); the fact that Rocha had taken large amounts of cash to Mexico for Arnulfo Quintero on several occasions (RT 101); and the names of at least two local participants in the Quintero organization — Ari Sandine and Albino Torres (RT 108-09). Some of this information was included in the wiretap affidavit.

4. Rocha also described the process by which Arnulfo Quintero manufactured methamphetamine from ephedrine pills, including details such as the number of flasks he set up and the amount of ice he used. (RT 109-12.) Rocha offered to take the agents to a lab site that he knew Quintero had used in the past. (RT 92.)

5. Rocha told Det. Heath and SA Snyder that Arnulfo Quintero's main source of ephedrine was an individual named Ivan Mendoza. (RT 114-15.)

6. Rocha said Mendoza lived in Los Angeles, but also had residences in Santa Ana, California and Guadalajara, Mexico. (RT 115-16.) Rocha also said that Mendoza had an uncle who was a supervisor at a laboratory in Quadalejara, from which Mendoza obtained ephedrine pills. (RT 513.) Rocha had no other information more specifically identifying Mendoza. (RT 115-16.)

7. Rocha said that Mendoza transported the chemicals to Tijuana. (RT 116.) Mendoza then paid another individual, who in turn paid hush money to the Mexican police, to transport the chemicals across the border. (RT 117.) Rocha also said that the chemicals were received by a woman named Esmerelda, who was a sister of either Arnulfo Quintero or Ivan Mendoza — Det. Heath thinks the former. (RT 513, 514.)

8. Both SA Snyder and Det. Heath considered Rocha to be a credible source of information regarding the Quintero organization. (RT 85, 514-15.) To SA Snyder's knowledge, there was no occasion on which Rocha gave information that was shown to be false. (RT 100.) At the same time, SA Snyder did not accept everything told to him by Rocha (or any informant) without verification, as he felt that details must be verified to be trusted. (RT 97-98.) SA Snyder considered details given by reliable informants which could not be verified as unverified leads, not necessarily false information. (RT 100-01.)

9. SA Snyder began an effort to verify the existence of Ivan Mendoza. (RT 117.)

10. SA Snyder never got to the point of trying to verify the information regarding payoffs to the Mexican police because he was unable to trace Mendoza. (RT 117.)

11. In November of 1995, Ari Sandine had been arrested at the same Richmond lab site where Rocha was arrested. (RT 517.) SA Snyder had information that Ari Sandine had been involved in obtaining ephedrine for the Quintero organization (RT 42) and was one of Arnulfo Quintero's "primary assistants" (RT 108).

12. In June 1996, the Santa Rosa Police searched Ari Sandine's house in Santa Rosa and found papers with the notations Ivan Alanza Mendoza and Santa Cali with the same telephone number in the 714 area code. Det. Heath provided this information to SA Snyder. (RT 121, 355, 516; BN 4381.)

13. Det. Heath was unable to find any verification of anyone matching Ivan Mendoza or Ivan Alanza Mendoza through the California databases available to him, or even to verify the existence of a town called Santa Cali. (RT 539.)

14. SA Snyder checked his agency's computer system, NADDIS, for Ivan Mendoza, but found that name to be so common that he was unable to narrow the search to match the Ivan Mendoza to whom Rocha referred. (RT 122.) SA Snyder does not remember running a NADDIS check on the name Ivan Alanza Mendoza. SA Snyder might have been able to narrow the search if he had used that middle name. (RT 123.)

15. In February of 1996, SA Snyder received responses to administrative subpoenas to Pacific Bell requesting subscriber information for telephone numbers that had been listed in the telephone book of Ari Sandine. According to Pacific Bell's response, one of the numbers for "Ivan" was listed to Claudio Martinez, 1341 Fairview Drive in Garden Grove, and another was listed to Saba Luz Vallecillo, 1401 East 48th Street in Los Angeles. (BN 13595)

16. It was well known to Det. Heath and SA Snyder that individuals involved in illegal drug activities often do not register their phones in their own names. (RT 519; BN 92.)

17. SA Snyder found no record of a Claudio Martinez in the NADDIS system. (RT 356.)

18. SA Snyder asked a DEA agent John Seider in Los Angeles to "check out" the address at 1341 Fairview Drive in Garden Grove and find out what the agent could. (RT 134,135.)

19. SA Seider went to the Garden Grove address, but did not obtain any information helpful to SA Snyder's investigation. (RT 133-38.) SA Seider did not tell SA Snyder what he did to investigate the address. (RT 135.)

20. SA Snyder cannot recall what details he gave SA Seider or whether he gave SA Seider the name "Ivan Mendoza," but believes that he (Snyder) would have given SA Seider some background on why the address was potentially important. SA Snyder doubts that SA Seider talked to any of that address' neighbors. (RT 137.) SA Snyder did not ask SA Seider what he had done to pursue this lead regarding Ivan Mendoza because SA Snyder was a very accomplished agent and he did not wish to "micro manage" SA Seider. (RT 137-38.) SA Snyder did not take any further steps to pursue the address information from Pacific Bell.

21. SA Snyder also requested and received subscriber information on a telephone number in Mexico that Det. Heath had obtained from a pen register on Arnulfo Quintero's home phone. (RT 139.) The number was subscribed by a Mexican medical products company, Abastos de Materials y Productas Medicas. (RT 141.) Prior to SA Snyder receiving this number, the company was not in the NADDIS database. SA Snyder believes that the number was only called once or twice from Arnulfo Quintero's telephone. (RT 520.)

22. SA Snyder followed up on this information by asking a DEA intelligence analyst, who had just returned from working in Mexico City, to find out more information about the company. (RT 143.) But the analyst was unable to provide any information about the chemical company. (RT 143-44.) SA Snyder does not know what she did in this regard and did not ask, but assumed that she would do what she thought best to find out about the company. (RT 143-44.) Neither Det. Heath nor SA Snyder did anything further to follow up on the Mexican phone numbers. (RT 520.)

23. SA Snyder could not locate Ivan Mendoza, leaving open at least a possibility that he did not exist. (RT 147, 357-58.)

24. SA Snyder testified that he took information regarding Ivan Mendoza into account when he wrote his affidavit but did not include it. Instead, he testified that he wrote that Rocha informed the government that Quintero got his ephedrine from "unknown sources" because SA Snyder was not sure who Ivan Mendoza was, i.e., he could not attach the name to a person. (RT 147, 175.)

(4) The omission of information about methods of ephedrine transportation supplied by SOI(2), Ricardo Cardenas.

1. It was established at the hearing (but not earlier) that: (1) SA Snyder had no reason to believe that SOI(2) and Ricardo Cardenas were the same person; (2) Cardenas was not an informant; and (3) the agents neither learned the identity of nor ever communicated directly with SOI(2). (RT 167-68.) Therefore, Defendants now concede that this allegation was not shown to be a Franks violation. Specifically, the hearing established the following facts:

2. The affidavit identifies Richardo Cardenas as a member of the Quintero criminal organization. (BN 95.)

3. The affidavit reports that Rocha said that precursor chemicals are transported from Los Angeles to clandestine laboratories in northern California by members of the Quintero organization. (BN 19.)

4. Rocha said Richardo Cardenas transported ephedrine pills one time from Los Angeles to northern California on January 31, 1995. (RT 538-39; BN 289-90.)

5. SOI(2) was an associate of Rocha's. Rocha told officers that SOI(2) would cooperate in the Quintero investigation. Rocha said SOI(2) had been involved in the acquisition and transportation of ephedrine for Arnulfo Quintero. Rocha said he had contacted SOI(2) in Los Angeles and was told that SOI(2) was to transport ephedrine from Los Angeles to northern California sometime after January 30, 1995. (RT 168-71; BN 13586.)

6. Rocha never identified SOI(2) by name and never gave law enforcement any more information about SOI(2)'s prospective ephedrine transport. (RT 155, 173, 538-39.)

7. SA Snyder and SA Russell do not believe that SOI(2) was Richardo Cardenas because Rocha gave them Cardenas' name, but did not give SOI(2)'s name. (RT 166-68; 362-64.)

8. The Quintero investigative team never saw Richardo Cardenas, nor did they observe him or identify him in any other transportation of chemicals. (RT 155, 361, 525.)

9. SA Snyder did not identify Cardenas as the person who Rocha said delivered ephedrine one time in the affidavit because he did not believe that information was relevant to the issues of necessity or probable cause. (RT 360.)

(5) The omission of information about methamphetamine laboratories located at 4300 Bear Gulch Road in San Gregorio, CA. and 1296 Jensen Lane, and means by which investigators had located those laboratories.

A. Bear Gulch Road

1. In November 1995, an informant of the San Jose BNE reported that the Bear Gulch Road property and the stables on it were being used to manufacture methamphetamine. (RT 273.)

2. On June 20, 1996 Homar Quintero told Det. McCaffrey of the Sonoma County Sheriff's Office, who was working as an undercover agent, that he was having a pound of methamphetamine delivered for McCaffrey to purchase. SA Snyder and numerous other agents observed Homar as he met with his sources, two Hispanic males, who were driving a minivan with license number 2JFM953. (RT 268-70, BN 13665.)

3. Homar Quintero was a major participant in the Quintero organization. During the course of the investigation, he made numerous drug sales to McCaffrey. (BN 34, 43, 44, 47.)

4. The white Ford minivan was left at a car wash in Sonoma County on June 20, 1996 and was never seen at the 4300 Bear Gulch Road property. The two Hispanic males walked away from the minivan after driving it to a car wash in Santa Rosa, at which time surveillance lost them. (RT 271, 367.)

5. The two Hispanic males from the minivan were not identified. (RT 269, 367.)

6. That same day, SA Snyder obtained DMV information that showed that the van was registered to Tiburcio Alejandro Rubiolara at 4300 Bear Gulch Road in San Gregorio. (RT 271, BN 13665.) This information was current as of May 9, 1996. (BN 348.)

7. After obtaining this address, SA Snyder learned that the San Jose office of the BNE had an active investigation on that address. (RT 272.)

8. On the same day on which the white minivan delivered the drugs to Homar Quintero, June 20, 1996, Det. Heath was monitoring a duplicate of Homar's pager and noted several "911" calls (a code used by the Quintero organization to designate urgency) from area code 415. Det. Heath knew that San Gregorio was within this area code. (BN 4380.)

9. Based on the fact that the white minivan that delivered the drugs to Homar Quintero was registered to 4300 Bear Gulch Road, SA Snyder went to that address to inspect it and take photographs. (BN 348.) The property consisted of several acres with a commercial stable and outbuildings. (RT 274.)

10. On September 27, 1996 (three months after Homar Quintero's sale in June to undercover Det. McCaffrey), the San Jose BNE located a working methamphetamine laboratory at 4300 Bear Gulch Road in the process of "cooking" an expected yield of 52 pounds of methamphetamine. Agents arrested nine individuals. (RT 277, BN 13701.)

11. One of the individuals arrested with chemical residue on his clothing was Tiburcio Rubiolara, the registered owner of the white minivan. (RT 279.)

12. The seizure of the laboratory resulted from a separate investigation by the San Jose BNE that San Jose agents conducted without the knowledge of SA Snyder and his colleagues until the end. However, the California Department of Justice Bureau of Narcotics Enforcement was one of the five law enforcement agencies equally involved in the joint investigation of the Quintero organization. SA Snyder received a copy of the report of the bust in December, 1996, prior to drafting the wiretap affidavit. (RT 35, 276-79; BN 13701.)

13. Det. Heath believed that the Bear Gulch lab was a source of supply to Homar Quintero. (RT 540.)

14. When SA Snyder learned of the seizure of the laboratory, he and his colleagues asked the San Jose BNE officers whether they knew of any connection between the Bear Gulch Road laboratory and the Quintero organization. They responded that they did not. SA Snyder testified that this response, combined with his focus on the Quintero organization in Sonoma County, lead him to take no further interest in the Bear Gulch laboratory. (RT 278, 367.)

15. SA Snyder reported Homar's transaction with Det. McCaffrey in his wiretap affidavit, including Homar's statement that he was waiting for his source of supply on Bear Gulch Road, but did not refer to the minivan, its registered owner and his address, or the working methamphetamine lab that was found several months later at that address.

16. SA Snyder testified that he chose not to include the information about the Bear Gulch Road laboratory in his affidavit because he felt that the lab was a separate conspiracy for which Arnulfo Quintero and his organization were not responsible. (RT 278, 368.) (DelaO had told SA Snyder that Homar and others had separate sources of supply independent from Arnulfo Quintero.)

17. SA Snyder knew that Homar Quintero was a major participant in the conspiracy and directed a number of undercover purchases between Homar and Det. McCaffrey, including the one on June 20, 1996, discussed above. The June sale is charged in the indictment as an overt act in furtherance of the conspiracy.

B. Jensen Lane

18. Defendants no longer contest the omission of mention of a laboratory at 1296 Jensen Lane because the evidence at the hearing revealed that no laboratory was found there. (RT 365.)² Specifically, the hearing established the following facts:

2 The government should have informed Defendants and the Court earlier that no lab had been found at the Jensen Lane address, rather than taking the position in its response to Defendants' wiretap motion that SA Snyder had not mentioned the Jensen Lane lab because it had not been shown to be associated with the Quintero organization. (Govt. Opp. To Wiretap Mot. at 13.)

19. On February 8, 1996, officers observed Arnulfo Quintero drive to 1296 Jensen Lane in Windsor, California. This address is a vineyard property, which includes a house and a barn. (RT 282-83.)

20. On August 29, 1996, officers again saw Arnulfo Quintero go to 1296 Jensen Lane. (RT 293.)

21. On August 29, 1996, SA Snyder saw more than one person walking in casual dress near the barn area on Jensen Road. (RT 297-99.)

22. At approximately 5:00 a.m. on August 30, 1996, SAs Snyder and Russell went on to the Jensen Lane property. They came within ten feet of the barn, where SA Russell smelled an odor that he associated with the manufacture of methamphetamine. (RT 300-02.)

23. No methamphetamine laboratory or anything associated with a methamphetamine laboratory was ever found at 1296 Jensen Lane. (RT 304, 365.)

24. No officer, including SA Snyder, ever believed that 1296 Jensen Lane contained a methamphetamine laboratory. (RT 364-65.)

25. The affidavit did discuss two laboratories that SA Snyder believed were associated with Arnulfo Quintero and the Quintero organization. (BN 20, 44-45.)

(6) Other Misstatements and Omissions Raised in Defendants' prehearing brief that the Government admits, but contends were not material.

1. The statement in the wiretap affidavit at BN 21:16-18 that Rick DelaO had made six controlled buys is incorrect. The government has admitted that Arnulfo Quintero distributed drugs six times and others sold drugs eight times to DelaO. (Govt.'s Opp. To Wiretap Mot. at 9.) The quantities ranged from 4 oz. to ~ lb., spanned the period from June 1996 to January 30, 1997, and involved Defendants Arnulfo Quintero, Jaime Andrade, Jose Quintero, Juanito Quintero, and Homar Quintero. (BN 360-61, 363, 13669-72, 13678-79, 13685, 13688-90, 13754, 13765, 13772, 13779.)

2. The statement in the wiretap affidavit that: "A pen register on the residential telephone of Arnulfo Quintero is being used. . .[but it does not] identify incoming telephone calls" (BN 104-105) is misleading. As the government has admitted, the affidavit omitted the fact that the agents also had authorization for a trap and trace device, which records the originating telephone numbers of incoming calls to a hard line. (Govt.'s Opp. at 12.)

3. The statement in the wiretap affidavit that "all efforts by CS-4 [Douglas Kirkpatrick] to learn the identity [and roles] of members of Quintero's organization and the scope of the Quintero narcotic distribution network have been unsuccessful" (BN 102-03) is misleading. The government has admitted that "CS-4 [Douglas Kirkpatrick] made [no] such efforts [and had not] been directed to do so." (Govt.'s Reply to Defs.' Reply at 2.)

4. Defendants listed 23 individuals whom the government identified during the course of its investigation as customers and/or distributors of the Quintero organization. The government did not contest their identification, but argued that the omission of these customers is not material. (Govt.'s Opp. at 14.)

5. As the government has conceded, the wiretap affidavit omitted eight successful undercover methamphetamine buys — ranging from two ounces to 3/4 lb. — from individuals associated with the Quinteros (including Francisco Alejandes, a supplier for Homar Quintero). (Govt.'s Opp. at 13.)

6. As the government has conceded, the wiretap affidavit omitted the fact that air surveillance was used to follow and observe the Quinteros. (RT 284-85; Govt.'s Opp. at 14.)

Conclusions of Law

1. Under Title 18, United States Code, Section 2518(3)(c), a district judge authorizing interception of wire communications must find, in addition to probable cause, 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." 18 U.S.C. § 2518(3)(c); United States v. Brown, 761 F.2d 1272, 1275 (9th Cir. 1985).

2. Title 18 U.S.C. § 2518(1)(c) provides that each application for a wiretap authorization 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.

"Such a showing must allege specific circumstances that render normal investigative techniques particularly ineffective . . . ." United States v. Ippolito, 774 F.2d 1482, 1486 (9th Cir. 1985).

3. Title 18 U.S.C. § 2518(1)(c) and 2518(3)(c) (quoted above) together make up the necessity requirement which must support any authorization of a wiretap. See Ippolito, 774 F.2d at 1485.

4. A showing of necessity by the government and a finding of necessity by the court are material to the issuance of a wiretap authorization. See Ippolito, 774 F.2d at 1485. A judge who authorizes a wiretap enjoys "considerable discretion." See United States v. Brone, 792 F.2d 1504, 1506 (9th Cir. 1986).

5. The necessity requirement exists "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); Brown, 761 F.2d at 1275.

6. To show necessity, the government need only demonstrate that "ordinary investigative techniques employing a normal amount of resources have failed to make the case within a reasonable period of time." United States v. Spagnuolo, 549 F.2d 705, 711 (9th Cir. 1977); see also United States v. Bailey, 607 F.2d 237, 242 (9th Cir. 1979). The government may not "ignore avenues of investigation that appear both fruitful and cost-effective." Ippolito, 774 F.2d at 1486.

7. "In evaluating the showing of the government's good-faith effort to use normal alternative means or its failure to use those means because of danger or a low probability of success, the reviewing court should use a standard of reasonableness." Ippolito, 774 F.2 at 1486.

8. The sufficiency of the government's affidavits in support of an application for a wiretap should be determined by "a practical and common-sense approach." See United States v. Echavarria-Olarte, 904 F.2d 1391, 1396 (9th Cir. 1990) (quoting Ippolito, 774 F.2d at 1486); Brone, 792 F.2d at 1506; Bailey, 607 F.2d at 241.

9. Although wiretaps should not be used routinely as the initial step in criminal investigations, the necessity requirement is not intended to relegate the use of wiretaps to the step of last resort. See United States v. Butz, 982 F.2d 1378, 1383 (9th Cir.); United States v. Torres, 908 F.2d 1417, 1422 (9th Cir. 1990); Brone, 792 F.2d at 1506; Brown, 761 F.2d at 1275; Bailey, 607 F.2d at 242; Spagnuolo, 549 F.2d at 710.

10. The fact that the government could have taken different or additional steps in its investigation does not by itself demonstrate lack of necessity. See United States v. Carneiro, 861 F.2d 1171, 1178 (9th Cir. 1988). "Courts will not invalidate a wiretap order because [defendants] are able to suggest post factum some investigative technique that might have been used and was not." Carneiro, 861 F.2d at 1178 (citing United States v. Webster, 734 F.2d 1048, 1055 (5th Cir. 1984)).

11. "Nor must ordinary investigative procedures have been completely unsuccessful. They need only to have reached a stage where further use cannot reasonably be required." Spagnuolo, 549 F.2d at 710 n. 1 (citing United States v. Sandoval, 550 F.2d 427 (9th Cir. 1976); United States v. Scully, 546 F.2d 255 (9th Cir. 1976).

12. Evidence obtained pursuant to a wiretap must be suppressed if the defendants can prove by a preponderance of the evidence that: (1) a false statement or omission was included in the affidavit by the affiant knowingly and intentionally or with reckless disregard for the truth; and (2) the false statement or omission was material to the finding of necessity. See Ippolito, 774 F.2d at 1485; see also Franks v. Delaware, 438 U.S. 154, 155-56 (1978). 13. The mere fact that an affidavit does not list every conceivable conclusion does not constitute recklessness. See United States v. Burnes, 816 F.2d 1354, 1358 (9th Cir. 1987).

14. A showing that an affidavit contains misstatements or omissions resulting from negligence or innocent mistake is insufficient to warrant suppression. See United States v. Homick, 964 F.2d 899, 904-05 (9th Cir. 1992); United States v. Tham, 960 F.2d 1391, 1396 (9th Cir. 1992); United States v. Young Buffalo, 591 F.2d 506, 510 (9th Cir. 1979) United States v. Colkley, 899 F.2d 297, 301 (4th Cir. 1990).

15. On the other hand, in Aviles the Ninth Circuit found that a "misleading" statement that "needed serious qualification to be accurate. . ." and which was "made deliberately to a court. . . . must be judged as a statement intentionally made." United States v. Aviles, 153 F.3d 931, 937 (9th Cir. 1998). In addition, some courts have inferred recklessness from the fact that the omitted information was "clearly critical" to the court's determination. See Rivera v. United States, 928 F.2d 592, 604 (2d Cir. 1991); United States v. Reivich, 793 F.2d 957, 961 (8th Cir. 1986). The Fourth Circuit, however, has expressed doubt about inferring recklessness from omission of "clearly critical" information, since doing so collapses the two prongs of the Franks test — intent and materiality — into a single inquiry. See Colkley, 899 F.2d at 301.

16. "A deliberate or reckless omission by a government official who is not the affiant can be the basis for a Franks suppression." United States v. DeLeon, 979 F.2d 761, 764 (9th Cir. 1992). "[M]isstatements or omissions of government officials which are incorporated in an affidavit for a search warrant are grounds for a Franks hearing, even if the official at fault is not the affiant." Id.; see also United States v. Roberts, 747 F.2d 537, 546 n. 10 (9th Cir. 1984).

17. Proof that law enforcement officials either lied or made reckless misstatements or omissions in affidavits to obtain a wiretap does not in and of itself invalidate the order authorizing the wiretap or compel suppression of the evidence obtained pursuant to that wiretap. See Ippolito, 774 F.2d at 1485. The false statements or omissions must be material to the finding of necessity to warrant suppression. See id.

18. If an intentional or reckless misstatement or omission is found, the court must evaluate the hypothetical effect of knowledge of the misstatement or omission on the district court's determination that a wiretap was necessary. If the misstatement or omission would have had no effect, then it is not material. See Ippolito, 774 F.2d at 1485-86.

19. To determine the materiality of any misstatements or omissions, a court must delete the false or misleading statements from the original affidavit, insert the omitted truths revealed at the suppression hearing, and then make an independent determination of necessity based on the reformed affidavit. See Ippolito, 774 F.2d at 1486-87. If the court determines that the reformed affidavit fails to establish the required necessity, then suppression of the wiretap evidence is the appropriate remedy. See id.

20. Affirming an order by the district court granting suppression of wiretap evidence, the Ninth Circuit in Ippolito concluded that "a reasonable district court judge could have denied the application because necessity for the wiretap order had not been shown. Therefore, suppression was properly ordered." Ippolito, 774 F.2d at 1487. Similarly, in affirming another order granting suppression, the court explained that the omitted facts showed that traditional investigative techniques "could have led to successful infiltration of the entire enterprise." United States v. Simpson, 813 F.2d 1462, 1472-73 (9th Cir. 1987). Defendants argue that these courts' use of the phrase "could have" requires suppression if a reasonable district court judge could have denied the application — whether the judge would have denied the application or not.

21. The Ninth Circuit's most recent decision in this area, however, affirmed an order denying suppression despite the fact that, had the misstatements and omissions in the wiretap affidavit been rectified, "[a]n impartial judge . . . might have concluded that the standard use of a cooperative co-conspirator obviated the need for further wiretaps." Aviles, 153 F.3d at 937 (emphasis added).

22. "Could have" as used in Ippolito and Simpson does not differ materially from "might have" as used in Aviles. Rather, the appellate court upheld the earlier decisions to suppress because a reasonable judge could have found that necessity was not established, while affirming the decision not to suppress in Aviles because a judge likely would have authorized the wiretap even with the corrected information, despite a possibility that the judge could have exercised his or her discretion to deny the wiretap. Therefore, this court does not agree that the bare possibility that a district judge could have rejected a wiretap application based on a reformed affidavit requires suppression. If the rule were otherwise, the requirement of materiality would be met in almost every case, given the broad discretion vested in judges who authorize wiretaps. See U.S. v. Brone, 792 F.2d at 1506.

23. In Aviles, the appellate court held that the affidavit intentionally misled the district court judge by stating that the informant (the defendant's best friend and customer of 3 to 5 kilos per month) did not provide "any substantial information." See Aviles, 153 F.3d at 936-37. In fact, the informant had revealed how the defendant and his co-conspirator delivered, transported and concealed cocaine. See id. Nonetheless, the Court ultimately determined that the misstatement and related omissions were not material in view of the apparent scope of the drug enterprise and the sweeping goals of the government's investigation. The Court reasoned that even though, on the one hand, the informant provided substantial information,

"[o]n the other hand, the magistrate judge and the district judge were correct in noting several areas where [the informant] was not likely to have information and had in fact provided no information. . . . Given that [the defendant] was shown to be dealing cocaine on a wide scale, the authorizing judge would doubtless have let the wiretaps continue in order to catch the entire organization. . . . A coup de grace to the organization needed more than [the informant] could provide. Wiretaps were the way to this consummation. The information about [the informant] was, in the final analysis, not material. . . ."

Id. at 937 (emphasis added).

24. To determine whether a misstatement or omission is material to a finding of necessity, the impact of the misstatement or omission must be judged in light of the goals and objectives of the investigation for which the wiretap authorization is sought. Law enforcement officials are entitled to seek broad objectives in their investigations. See Aviles, 153 F.3d at 937 (permissible goal to uncover and eliminate entire organization); Carneiro, 861 F.2d at 1180 (wiretap "authorized the DEA to discover the scope and details of the alleged conspiracy's entire operation"); see also Sandoval, 550 F.2d at 430. Permissible objectives include identifying and apprehending the defendant's co-conspirators, identifying the entire scope of the conspiracy, identifying a defendant's sources of narcotics, identifying methods of transporting narcotics, locating drug storage locations, and recovering illegal drugs. See Torres, 908 F.2d at 1422; Homick, 964 F.2d at 903-904; Brone, 792 F.2d at 1506; Spagnuolo, 549 F.2d at 711; Sandoval, 550 F.2d at 430-31; United States v. Orozco, 630 F. Supp. 1418, 1519-20 (S.D.Cal. 1986); United States v. Zolp, 659 F. Supp. 692, 710 (D.N.J. 1987).

25. Defendants here dispute (without citing any authority) "the premise that no stated objective is too broad to serve as a legitimate goal of a wiretap." (Defs.' Res. to Govt.'s Pro. Find. at 9.) Defendants raise a legitimate concern that the government theoretically could assert goals so unnecessarily sweeping that by definition no traditional means of investigation could achieve the goals with reasonable efforts in a reasonable amount of time. In effect, the sweeping goals adopted by the government would insulate the wiretap from any meaningful inquiry by the court regarding necessity. Here, however, the goals of the government's investigation of the Quintero organization, while broad, fit well within the type and scope of goals previously approved by the appellate courts. Moreover, the goals do not appear to be disproportionate to the broad scope of the Quintero organization.

26. The specific issues before this Court are whether the five misstatements or omissions contained in the government's wiretap affidavit that were the subject of the evidentiary hearing, considered together with the more minor misstatements or omissions that Judge Smith did not find merited a hearing were: (1) deliberately or recklessly false or misleading; and (2) material in the sense that they would have affected the reviewing court's decision regarding the necessity of the wiretap in question. The court reaches the following conclusions about these issues.

(1) Omitted Informants

Following the evidentiary hearing, Defendants no longer contend that SA Snyder should have informed the court of eight additional informants. Instead, Defendants now confine their argument to three of those eight informants: SOI(1), SOI(2) and CS-16.

Defendants' argument regarding these three informants is not persuasive. At the evidentiary hearing, Defendants chose not to avail themselves of the opportunity to question SA Snyder about SOI(1) or SOI(2). This failure to elicit testimony about SOI(1) and SOI(2) suggests that Defendants did not believe that the omission of these two informants was important.

The sole evidence in the record about SOI(1) and SOI(2) is a Report of Investigation by SA Snyder regarding a single interview by Det. Bertoli with these two sources. In the interview, SOI(1) and SOI(2) gave information regarding Michael Miller's work on hidden compartments in Jose and Homar Quinteros' cars. Although some of the information they gave appeared correct, this single report does not contain sufficient information to establish the informants' reliability, much less their ability to provide further information useful to the investigation.

CS-16, a relative of Michael Miller, told Detective McIntire that Michael Miller purchased drugs from "Jose" and constructed hidden compartments in his vehicles. The fact that this information is consistent with that given by SOI(1) and SOI(2) provides some corroboration. Both SA Snyder and Det. McIntire had doubts about CS-16's reliability, however, due to their suspicion that he was a disgruntled relative of Miller's. This suspicion provided a good reason for omitting CS-16 from the affidavit. Thus, omission of CS-16 from the affidavit was not recklessly or intentionally misleading.

Nor was the information about CS-16, SOI(1) and SOI(2) material in the sense that its inclusion would have made a difference to authorization of the wiretap, given the broad goals of the investigation. Compared to the large volume of drugs and cash involved in the conspiracy, these informants only offered information about a few limited hiding places for drugs and cash used by two of the brothers.

As Defendants now concede, the omissions of the other informants was neither misleading nor material. Neither SA Snyder nor any other law enforcement officer involved in the investigation knew the identities of the informants designated by Det. Heath as CS-2, CS-3, CS-7, CS-10 and CS-11. CS-4 and CS-7 were no longer willing to work as informants. The information provided by Det. Heath's CS-2, CS-3, CS-4 and CS-5(also designated as CS-12) went to narcotics activity prior to 1995, when the conspiracy was quite different than the one targeted by this investigation. CS-7 had no information as to any member of the organization except the now arrested and cooperating Ignacio Rocha. CS-10 and CS-11 only had information regarding Arturo Quintero, Nadia Garcia, Mario Quintero and Ryan Babbino, whom SA Snyder knew to have either left the conspiracy or to be, at most, tangential to the main conspirator, Arnulfo Quintero. CS-14 had no information about any narcotics distribution or manufacture; her sole information concerned vehicle traffic at Todd Beaugrand's house. CS-15 only had information about a narcotics distribution between Todd Beaugrand and a person named Jaime, not a member of the conspiracy.

(2) The statements at pages 101-102 of the affidavit regarding DelaO's information from Arnulfo Quintero and the omission of information demonstrating DelaO's close association with the Quinteros.

Defendants contend that the following statements in the wiretap affidavit about informant DelaO are false and misleading: (a) DelaO is "rarely told particular details about the organizations activities apart from the particular transaction he is involved with at the time" (BN 101) and "is only provided with information concerning his particular dealings WITH Quintero" (BN 102);

(b) DelaO did not get answers when he asked questions about the organization such as its manufacturing and sources of precursor chemicals (BN 102);

(c) Arnulfo Quintero told CS-2 he was not willing to be introduced to anyone he does not already know for methamphetamine sales;

(d) Agent Snyder did not know the location of Arnulfo Quintero's stash houses (BN 106, n. 2).

Defendants also contend that the affidavit should have included more information showing DelaO's close association with the Quinteros.

The issue of DelaO's utility to the investigation is the most important potential violation of Franks urged by Defendants. DelaO was the best placed informant in the investigation and assisted the DEA almost from the inception of its investigation.

The first statement that DelaO was "rarely" told details of the organization is too much of a judgment call on what is essentially a question of degree to be judged false. Whether the statement was misleading is a closer question. On one hand, DelaO was a valuable confidential source who associated closely with the Quinteros, introduced undercover agents to them and made numerous drug purchases himself. The testimony and exhibits showed that he had frequent social contacts with the Quinteros and did learn some general information about their laboratories and manufacturing.

On the other hand, the evidence also showed that from the time DelaO became directly involved in the investigation as a paid informant in June 1996 until the wiretap authorization in February 1997, he learned relatively few specific details from the Quinteros, especially when compared to the broad goals of the investigation. For example, although several members of the organization mentioned the general location of a lab or supplier to him (e.g., a friend in Los Angeles), they did not provide him with names or addresses or other information specific enough for agents to locate them.

The United States argues that the characterization "rarely told details" was literally true. There is some support for this argument. Yet this statement is followed by the unqualified statement that DelaO was "only" told about his particular transactions even though he did obtain some information unrelated to his transactions due to his close relationship with various members of the organization. Also, the necessity section of the affidavit omits some of the information that DelaO did learn. Thus, taken together, these statements may be somewhat misleading.

With respect to the statement that DelaO did not get his questions answered, the evidence revealed only a single instance of DelaO receiving a specific answer from one of the Quinteros to a question about his drug operations. This fact is not surprising, as the agents told DelaO to listen but not to ask questions that would make the Quinteros suspicious, and he generally followed that advice.

While Defendants imply that DelaO should have asked more questions in order to receive more answers, the agents' caution against arousing suspicion was eminently reasonable. Serving as a secret informant in a close-knit family organization dealing drugs is a sensitive and dangerous activity. Defendants stress the Quinteros' trust in DelaO in support of their argument that he could have fulfilled the investigation's goals without a wiretap. Paradoxically, however, DelaO kept that trust at least in part by not asking suspicious questions. As DelaO gathered information almost exclusively by being present, listening and observing, rather than asking questions, this statement was not misleading. SA Snyder's omission of the single exception to this general rule is at most negligent, not deliberate or reckless.

The third statement attacked by Defendants — that Arnulfo Quintero said he was unwilling to have DelaO introduce him to strangers to sell drugs — is literally true. Defendants are correct, however, that the affidavit did not point out that Arnulfo subsequently allowed DelaO to introduce him to an undercover agent to purchase Freon or that DelaO also introduced other undercover agents to other Quintero relatives.

Finally, the fourth statement regarding Agent Snyder's ignorance of the Quinteros' stash houses was not true as to two of them. DelaO had informed SA Snyder of the Quinteros' use of Todd Road and Yuba Road locations to store drugs and cash.

In general, the affidavit should have been more forthcoming in the necessity section about the useful information that DelaO obtained in order to facilitate the exercise of the court's independent judgment on the likelihood that traditional investigative techniques would suffice. Information that should have been disclosed in the necessity section of the affidavit includes the intelligence regarding the existence of stash houses at Yuba Drive and Todd Road (including the hiding place in the barn), the existence of a lab somewhere in the Sebastopol area, and the manufacturing and use of chemical sources in Mexico. Nonetheless, some (but not all) of the information about DelaO's close relationship with the Quinteros and value as an informant is contained elsewhere in the affidavit (e.g., the manufacture in Mexico is reported at BN 74.) This fact reduced the potential of any omissions in the necessity section to mislead the judge.

Even assuming that the statements about DelaO's utility as an informant were misleading, the crucial question that remains is whether they were material. Would the judge have turned down the wiretap request if he had been presented a reformed affidavit that included more detailed information about DelaO's help to the investigation? The court concludes that the misleading statements and omissions were not material, either by themselves or taken together with others pointed out by Defendants.

DelaO cooperated with investigators for nine months. Nonetheless, he did not and likely could not provide agents with sufficient information, in a reasonable time, about the full scope of the organization and its operations, from sources of chemicals to precise laboratory locations to wide-scale distribution to money laundering. For example, despite his many years of close association with the Quintero family and his frequent contact with them over the approximately nine months that he served as a paid informant on this investigation, the Quinteros did not tell DelaO exactly where and from whom they got their precursor chemicals, exactly where their laboratories were and how many they had, or where they stored or laundered the large amount of cash generated by the conspiracy, other than Todd Road and Yuba Road. Applying a practical, common sense approach, the court finds it unlikely that DelaO would have been able to obtain sufficient information in a reasonable amount of time to obviate the need for the wiretap.

Furthermore, considerable information about DelaO's utility as an informant that was omitted in the necessity section of the affidavit was contained in prior sections of the affidavit, which the judge who authorized the wiretap also reviewed. (E.g., BN 21-23, 55-58, 66-67.) Wiretap applications are appropriately rare and receive close review. See Aviles, 153 F.3d at 937 (while over 170 million telephones are used in the United States, only slightly more than 500 wiretaps are approved annually by federal district courts). While the section of the affidavit addressing necessity should disclose all the information the judge needs to make that determination, the impact of any omission in that section is mitigated by the inclusion of the information elsewhere in the affidavit.

(3) Ivan Mendoza

Defendants challenge the statement at page 19 of the affidavit that Rocha told investigators that Arnulfo Quintero obtained precursor chemicals from "unknown sources" and the omission of information about Ivan Mendoza, whom Rocha identified as that source and as, in turn, having sources in Mexico. The statement regarding "unknown sources" in Los Angeles is not a direct misstatement. The source in Los Angeles and Mexico remained unknown in the sense that investigators did not succeed in tracking down the suspected supplier (Mendoza) or his purported link to a Mexican chemical company.

In general, SA Snyder's reluctance to report unverified information to the court is reasonable and proper. In this instance, however, SA Snyder believed that the informant who provided the information about Mendoza (Rocha) was reliable, and the address book with telephone information about Mendoza found in the Sandine search provided some corroboration and leads. While SA Snyder testified that he was unable to verify Mendoza's existence, it is more likely that Mendoza existed, but eluded investigators. In any event, investigators did not find him.

The court hesitates to characterize the omission of the information pointing to Mendoza as a source as misleading because he was not located. Defendants argue that SA Snyder should have disclosed the leads about Mendoza in the affidavit, but also explained the investigation's lack of success in tracing him or the chemical company in Guadalajara. But inclusion of this information would not have made a difference to the court's wiretap determination. The information, at most, pointed to one particular source of precursor chemicals — not the sole source — and, in any event, investigators had not been able to track down this source. Thus, even if the omission of this information was misleading, it was not material.

Defendants argue that SA Snyder could have pursued the leads more vigorously through use of Mendoza's middle name found in the Sandine materials, as well as further investigation of the leads from telephone records about a possible residence of Mendoza's and his possible source of supply in Mexico. But the law does not require every lead to be pursued with maximum resources for as long as it takes; rather the law requires only reasonable efforts for a reasonable time. See Spagnuolo, 549 F.2d at 710. In light of this standard, SA Snyder's efforts to trace the leads regarding Mendoza and the chemical company in Mexico with the use of investigative databases and DEA colleagues were reasonable. While use of a middle name in the NADDIS search might have shortened the list of Mendozas in California somewhat, there is no basis for concluding that the middle name would have narrowed the field substantially. Nor was SA Snyder unreasonable in relying on the initiative of his DEA colleagues. Therefore, the district judge would not have insisted that investigators do more in tracing these leads before authorizing the wiretap.

(4) Richardo Cardenas

Based on the evidence presented at the hearing, Defendants now concede that the omission of information about methods of ephedrine transportation allegedly supplied by SOI(2) did not violate Franks. (Defs.' Pro. Findings Fact at 34.)

(5) Omission of Laboratories at Bear Gulch Road and Jensen Lane

A. Bear Gulch

SA Snyder consciously chose to omit the discovery of the working laboratory at Bear Gulch Road from his affidavit. The question of whether SA Snyder should have disclosed this information in order to provide accurate and complete information to the district judge is a close one. On the one hand, there was sufficient evidence to connect the laboratory to Homar Quintero, as one of his sources of methamphetamine. Homar was a major player in the Quintero organization. SA Snyder included considerable detail on sales by Homar to Det. McCaffrey in the "surveillance" section of his affidavit. Further, the indictment charged as one of the overt acts of the conspiracy the June 1996 sale that was subsequently linked to the Bear Gulch lab through the minivan that supplied the drugs for the sale.

On the other hand, the San Jose BNE responsible for investigating the San Gregorio laboratory had not uncovered any connection to the Quintero organization, whose main base was Sonoma County. Moreover, SA Snyder had good reason to believe that Homar was involved not only in the Arturo Quintero conspiracy but also in a separate side operation of his own.

The better practice would have been for SA Snyder to include the information together with his doubts about whether the laboratory was a source for the conspiracy at issue or a separate operation by Homar Quintero. Tracking down the laboratories that supplied the Quintero organization was a major goal of the investigation. Regardless of Homar's extra-curricular drug activities, he remained a major player in the Quintero organization targeted by SA Snyder. Sufficient circumstantial evidence existed to link the laboratory to Homar Quintero.³ The issuing judge would then have been able to make up his own mind about the possible connection to the Quintero organization headed by Arnulfo Quintero. See Spagnuolo, 549 F.2d at 710-11; Aviles, 153 F.3d at 437.

3 In the surveillance section of the affidavit, SA Snyder included a discussion of another laboratory seized in March 1996, which he connected to the Quinteros based on purely circumstantial evidence. SA Snyder based his conclusion that Arnulfo Quintero had a controlling or partial interest in that laboratory based simply on the fact that someone arrested at that lab had been seen at the home of someone else who had been in regular telephone contact with Arnulfo Quintero. (BN 33.) Of course, there the link was to Arnulfo Quintero, the leader of the organization under investigation, not Homar Quintero, who also had drug dealings outside the organization.

Even if the omission of the Bear Gulch laboratory may have been misleading, however, the omission was not material to the wiretap authorization. The seizure of a single laboratory in September 1996 with a possible connection to the main Quintero conspiracy would not have obviated the need to find other laboratories, much less learn more about other aspects of the organization. After the seizure, the organization continued to supply methamphetamine, so the Quinteros apparently had other laboratories. Indeed, when Arnulfo Quintero told DelaO in February 1997 that he had a lab site, he still wanted DelaO to help find an additional lab site. Therefore, a district court judge would not have concluded that the discovery of the Bear Gulch laboratory in San Gregorio obviated the need to find other laboratories, including in Sonoma County where the Quinteros lived and DelaO had been told that Arnulfo had a lab whose precise location remained unknown.

B. Jensen Lane

Defendants no longer contend that the affidavit should have discussed a possible laboratory at Jensen Lane. No lab was found there, nor did the officers believe that probable cause existed to search Jensen Lane.

(6) Other omissions and misstatements not the subject of the evidentiary hearing

Judge Smith's order dated July 17, 1998 granted a Franks hearing only as to the five issues addressed above. Defendants' Motion to Suppress Wiretap Evidence leading to that order also pointed out certain other omissions and misstatements of fact in the affidavit that the government conceded were inaccurate, but argued were not material. In their prehearing brief, Defendants identified the following additional omissions and misstatements:

(1) DelaO did not make six controlled buys (BN 21), but rather made six from Arnulfo Quintero and eight from others for a total of fourteen.

(2) Contrary to the affidavit's statement that "all efforts by CS-4 [Douglas Kirkpatrick] to learn certain information about the Quintero organization had failed" (BN 102), he did not make any such efforts.

(3) Although agents could not identify the originating telephone numbers of incoming calls through the pen register, as stated (BN 104-05), the affidavit omitted the fact that agents could identify incoming numbers through the trap and trace device they had on Arnulfo Quintero's telephones.

(4) The affidavit did not disclose the fact that the government identified 23 customers and/or distributors of the organization.

(5) The affidavit omitted numerous undercover purchases from Quintero associates.

(6) The affidavit did not inform the judge of the use of air surveillance.

In their Supplemental Proposed Findings of Fact and Conclusions of Law, filed on January 4, 1998, Defendants continue to contend that items (1), (2), (3) and (6) should be corrected in the affidavit as part of the Franks inquiry. (Defs.' Supp. Pro. Findings of Fact at 13-15.) Defendants no longer appear to be arguing that items (4) and (5) are material.

In addition, however, Defendants seek a further correction:

(7) The statement that "CS-1 has been unable to contact Arnulfo Quintero or his associates since their incarceration in the California State Prison system" should be amended to explain that the reason for the absence of contact is CS-1's lack of access to a telephone, not a breakdown in the relationship.

Judge Smith's exclusion of these additional misrepresentations from the scope of the evidentiary hearing suggests that she found that these other omissions and misstatements were immaterial, at least when considered by themselves. Defendants argue, however, that the court should now consider these additional inaccuracies together with the five issues that were the subject of the hearing in order to view the five issues in the context of all of the misstatements and omissions made in the affidavit and to assess SA Snyder's state of mind. (Defs.' Prehearing Brief in Support of Motion to Suppress at 7.)

Whether taken singly or together with the statements discussed above that were the subject of the evidentiary hearing, these additional omissions or misstatements are not material. Nor does reforming the affidavit to include/correct them make a difference to the outcome. Regarding (1), the failure to disclose the correct number of controlled buys by DelaO in an earlier section of the affidavit is immaterial because the necessity section in no way hid his success in making purchases. The necessity section stated: "CS-2 has been able to purchase controlled substances from a number of individuals within the QUINTERO organization," including Arnulfo, Jaime, Juanito, Homar and Salvador Quintero.

Item (2) is also immaterial because whether CS-4 made efforts or not, he was a customer of Arnulfo's who had moved to Missouri in 1994 and was, therefore, no longer in a good position to obtain much information. (BN 23-26.)

Item (3) may simply reflect a regrettable confusion over the somewhat arcane terminology of "pen register" and "trap and trace device" and is not material. Considerable information obtained from telephone records is disclosed in the affidavit.

Items (4) and (5) regarding additional customers and undercover buys are not material because the affidavit already contained extensive information about sales by the Quinteros.

Item (6) regarding air surveillance is also immaterial. There is no reason to believe that the use of air surveillance negated the Defendants' use of counter-surveillance techniques. Indeed, the surveillance section of the affidavit reflects instances in which the agents' surveillance was successfully evaded.

Item (7) regarding the reason for CS-1's inability to contact the Quinteros while imprisoned (no access to a telephone) is similarly immaterial. As long as CS-1 was in prison, he could not have frequent contact with the Quinteros, regardless of the reason.

CONCLUSION

Defendants now concede that the affidavit's omission of five of the eight undisclosed informants, the suspected laboratory at Jensen Lane that was never proven and Richardo Cardenas was not misleading and did not violate Franks. While Defendants still contend that the omission of three other informants and Ivan Mendoza and his possible source in Mexico was intentionally or recklessly misleading, the evidence does not support this contention. Only the affidavit's discussion of DelaO's utility in the necessity section and omission of the laboratory found at Bear Gulch Lane even arguably rise to the level of being recklessly misleading. In any event, these items were not material. Although the court does not condone any misstatements or questionable omissions, even if the affidavit were reformed to reflect all of the purported misstatements and omissions, in the final analysis the district judge would have made the same decision to authorize the wiretap. The Ninth Circuit's reasoning in Aviles applies equally here:

"Given that [the defendant] was shown to be ling cocaine on a wide scale, the authorizing ge would doubtless have let the wiretaps tinue in order to catch the entire anization. . . . A coup de grace to the anization needed more. . . ."

Id. at 936-37 (emphasis added).

RECOMMENDATION

Good cause appearing, it is hereby recommended that the court deny Defendants' motion to suppress brought on the basis of alleged violations of Franks v. Delaware, 438 U.S. 14 (1978), and its progeny in the authorization of the wiretap.