U.S. v. Ai Le, CR.S-99-0433 WBS.

• Decision Date: 14 February 2003
• Docket Number: No. CR.S-99-0433 WBS.,CR.S-99-0433 WBS.
• Citation: 255 F.Supp.2d 1132
• Court: U.S. District Court — Eastern District of California
• Parties: UNITED STATES of America, Plaintiff, v. Hoang Al LE, et. al. Defendants.

Page 1132

255 F.Supp.2d 1132

UNITED STATES of America, Plaintiff, v. Hoang Al LE, et. al. Defendants.

No. CR.S-99-0433 WBS.

United States District Court, E.D. California.

February 14, 2003.

William Sze Wong, Patrick Hanly, United States Attorney, Sacramento, CA, for U.S.

Richard B Mazer, Law Offices of Richard B Mazer, San Francisco, CA, for John That Luong.

J. Toney, Law Offices of J. Toney, Woodland, CA, Jan David Karowsky Sacramento, CA, Gail R Shifman, Law Offices of Gail Shifman, San Francisco, CA, for Minh Huynh.

Hayes H. Gable, III, Law Offices of Hayes H. Gable, III, Sacramento, CA, Shari G Rusk, Law Offices of Shari Rusk, Sacramento, CA, for Thy Chann.

Jeffrey L Staniels, Federal Defender, Sacramento, CA, for Thongsouk Then Lattanaphon.

Michael Bradley Bigelow, Law Offices of Michael Bradley Bigelow, Sacramento, CA, for Hoang Nguyen.

James Ralph Greiner, Law Offices of James R Greiner, Sacramento, CA, for Son Van Nguyen.

George C Boisseau, Law Offices of George C Boisseau, Santa Rosa, CA, for Hoang Ai Le.

MEMORANDUM AND ORDER RE DFENDANT HOANG AI LE'S MTION TO SUPPRESS EVIDENCE FROM WIRETAPS

SHUBB, District Judge.

Defendant Hoang Ai Le is one of seven defendants named in this indictment.¹ The wiretap investigation in this case began on August 5, 1995 and continued until April 8, 1996. During that period, wiretaps were authorized pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968 as amended by the Electronic Communications Privacy Act of 1968, 18 U.S.C. § 2510, et seq, by judges in the Northern District of California, the Central District of California, and the Eastern District of New York, and by the undersigned judge in the Eastern District of California.² Defendant requests a Franks hearing on his claims that the wiretap affidavits contained false and misleading statements. Defendant also moves to suppress evidence from intercepted wiretap communications on the grounds that: (1) the investigative goals of the wiretaps authorized in this case were so broad as to render 18 U.S.C. § 2518 a nullity; (2) the wiretaps were being used for their evidentiary advantages; and (3) requisite necessity for the wiretap extensions was lacking.

I. Applicable Law

"Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520, permits law enforcement officials to engage in electronic surveillance if certain privacy safeguards are observed." United States v. McGwire, 307 F.3d 1192, 1196 (9th Cir.2002). A wiretap applicant must provide, among other things, "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." 18 U.S.C. § 2518(1)(c). Before authorizing a wiretap, a judge must make several statutorily required findings of probable cause, including a determination that "normal investigative procedures have been tried and failed or reasonably appear unlikely to succeed if tried or to be too dangerous." 18 U.S.C. § 2518(3)(c).

The purpose of these "necessity requirements" is "to ensure that wiretapping is not resorted to in situations where traditional investigative techniques would suffice to expose the crime." United States v. Blackmon, 2.12, F.3d 1204, 1207 (9th Cir. 2001). While wiretaps should not be the initial step in an investigation, law enforcement officers need not exhaust every possible investigative alternative before obtaining a wiretap. McGuire, 307 F.3d at 1196-97. The Ninth Circuit "has adopted a `common sense approach' in which the reviewing court uses a standard of reasonableness to evaluate the government's good faith effort to use alternative investigative means or its failure to do so because of danger or low probability of success." Blackmon, 273 F.3d at 1207.

A "judge authorizing a wiretap has considerable discretion." United States v. Brone, 792 F.2d 1504, 1506 (9th Cir.1986). Accordingly, a court reviewing a wiretap authorization must use an abuse of discretion standard. Id. A court should uphold a wiretap, if "[l]ooking only to the four corners of the wiretap application ... there is a substantial basis for these [statutorilyrequired] findings of probable cause." United States v. Meling, 47 F.3d 1546, 1552 (9th Cir.1995).

II. Franks Hearing

Under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), a defendant is entitled to an evidentiary hearing regarding the veracity of an affidavit supporting an application "if he can make a substantial preliminary showing that the affidavit contain[ed] intentionally or recklessly false statements, and ... [that] the affidavit purged of its falsities would not be sufficient to support a finding of probable cause." Id. at 1553 (internal quotation and citation omitted). The Title III necessity requirement is "material to the issuance of a wiretap order and [is] subject to Franks." United States v. Ippolito, 114 F.2d 1482, 1485 (9th Cir. 1985).

A defendant must satisfy five requirements in order to be entitled to a Franks hearing: "`(1) the defendant must allege specifically which portions of the warrant affidavit are claimed to be false; (2) the defendant must contend that the false statements or omissions were deliberately or recklessly made; (3) a detailed offer of proof, including affidavits, must accompany the allegations; (4) the veracity of only the affiant must be challenged; [and] (5) the challenged statements must be necessary to find probable cause.'" United States v. Perdomo, 800 F.2d 916, 920 (9th Cir.1986) (quoting United States v. DiCesare, 765 F.2d 890, 895 (9th Cir. 1985)). Here, defendant contends that two aspects of the wiretap affidavits contain false or misleading statements, warranting a Franks hearing.

A. Claims that Electronic Surveillance Fell ShoH of Achieving Investigative Goals

First, defendant contends that the government's claims in 1996 that electronic surveillance had fallen short of achieving its investigative goals "were patently false or misleading at best" because by 1996, even though new members were being brought into the organization, the government already knew who the bosses were and how they operated. Defendant has not made a substantial preliminary showing that the government's statements were false or misleading.

Although the government may have known the identities of the bosses of the conspiracy and how they operated by 1996, it does not necessarily follow that the government's statements that electronic surveillance was falling fall short of its investigative goals were false. The stated investigative goals of the 1996 wiretaps went beyond the mere identification of the leaders of the conspiracy and included, among other things, "the identification of other co-conspirators, aiders and abetters who are acting in concert with the subjects of the applications. See, e.g., N.D. Cal. Jan. 19, 1996 Appl. at 14943:15-17; N.D. Cal. Jan. 30, 1996 Appl. at 15150:4-6; E.D. Cal. Feb. 20, 1996 Appl. at 15264:21-24. Therefore, the government's knowledge of who the bosses of the conspiracy were at the time of the 1996 applications does not preclude a finding that probable cause existed to allow the government to engage in electronic surveillance to pursue the government's other investigative goals, particularly the identification of other conspirators. Cf. United States v. Sandoval, 550 F.2d 427, 430 (9th Cir.1976) (upholding wiretap where government sought to apprehend satellite conspirators even though it had already obtained evidence to prosecute main conspirators). In the absence of any more specific allegations by defendant regarding the alleged falsity of the government's claims that electronic surveillance was falling short of its investigative goals, the court cannot grant a Franks hearing on this claim.

B. Claims that Normal Investigative Procedures Would Not Work

Second, defendant apparently contends that the government's claims that normal investigative procedures would not work were false. In a footnote, defendant states that, "[c]uriously, the government continually claimed that `normal' investigative procedures would not work in their investigation of the narcotics trafficking or computer company robberies despite the fact that the March 5,1995 heroin distribution involved a sale to an undercover police officer set up by a confidential informant." Defendant also states that the government did not try investigative procedures other than the wiretaps after the fall of 1995. These allegations fall short of establishing defendant's entitlement to a Franks hearing.

First, defendant does not specifically allege which portions of the wiretap affidavits he believes are false or misleading. Second, the success of one undercover drug transaction is irrelevant to whether normal investigative procedures were likely or unlikely to succeed in the computer company robbery aspect of the investigation.

Third, the fact that one undercover officer engaged in a single heroin transaction does not lead to the conclusion that the government lied or misled the courts in its assertions that normal investigative techniques were not working, were unlikely to succeed, or were too dangerous. The government consistently provided the courts authorizing the wiretaps with information regarding the potential use of undercover officers and details regarding transactions set up by confidential informants. See, e.g., N.D. Cal. Aug. 1, 1995 Appl. at 14308:15-14312:16 (summarizing a heroin transaction set up by Confidential Source ["C-S"] 1 and involving an undercover agent); id. at 14336:26-14337:7 (stating that CS-7's attempt to introduce an undercover agent was unsuccessful and that on one occasion, an undercover agent was present at a heroin transaction but was unable to meet with the principal subjects); N.D. Cal. Dec. 8, 1995 Appl. at 14823:20-14824:7 (discussing the difficulty in introducing an...