U.S. v. Cartagena
| Citation | 593 F.3d 104 |
| Decision Date | 29 January 2010 |
| Docket Number | No. 08-2177.,08-2177. |
| Parties | UNITED STATES of America, Appellee, v. Julio CARTAGENA, a/k/a Triste, a/k/a Joselín, a/k/a Charlie, a/k/a Félix, a/k/a José Mejía, Defendant, Appellant. |
| Court | U.S. Court of Appeals — First Circuit |
Alan D. Rose, with whom Rose, Chinitz & Rose, was on brief for appellant.
Kelly Begg Lawrence, Assistant United States Attorney, with whom Michael K. Loucks, Acting United States Attorney, were on brief for appellee.
Before LYNCH, Chief Judge, TORRUELLA and STAHL, Circuit Judges.
Defendant-Appellant Julio Cartagena ("Cartagena") pled guilty to participation in a drug-trafficking conspiracy involving the importation and distribution of heroin and cocaine along the east coast, including the Greater Boston area. Cartagena appeals the district court's denial of three motions concerning his suspected involvement in the conspiracy. First, Cartagena challenges the district court's denial of a motion to suppress evidence obtained from state and federal wiretaps, arguing that the affidavits submitted in support of the wiretap applications omitted material information and that had this information been included, the wiretap applications would have failed to satisfy the "necessity requirement" of both 18 U.S.C. § 2518(1)(c) and N.Y.Crim. Proc. Law §§ 700.15(4), 700.20(2)(d). Second, Cartagena appeals the denial of his request for a hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Third, Cartagena challenges the denial of his motion to compel the production of documents relevant to the motion to suppress, as well as the denial of his motion for an in camera inspection of the government agents' handwritten notes. After careful consideration of Cartagena's challenges, we affirm in all respects.
This appeal concerns information obtained from drug trafficking investigations conducted by Drug Enforcement Administration (DEA) agents operating in Boston, New York, and in Bogotá, Colombia, in collaboration with the Colombian National Police (CNP). The DEA focused its investigation on two individuals operating on the east coast, Luis López ("López") in New York and Cartagena in Boston. Special Agent Sean Canavan ("Canavan") was responsible for the investigation of López, and Special Agent Jean Drouin ("Drouin") was responsible for the investigation of Cartagena.
Canavan's New York investigation centered on information regarding López and his role in the distribution of the imported heroin to wholesalers on the eastern seaboard, including Boston. The DEA's investigation of López in New York was based on information provided by a confidential informant, Pablo Báez ("Báez"). Báez worked with the DEA as a paid informant several years earlier and had reinitiated contact with the DEA in December 2004, providing information concerning drug trafficking activity in New York.
In mid-May 2005, Báez began providing information about López's activities. The DEA registered Báez as an official "confidential source" on June 8, 2005. Báez signed a DEA Confidential Source Agreement (CSA) that authorized him to engage in certain activities as an informant. On June 20, 2005, the New York DEA, relying in part on information that Báez provided, applied for a warrant, pursuant to the New York state wiretap statute, authorizing a wiretap on López's cellular telephone. The warrant was issued for a period of thirty days, commencing on June 22, 2005. The DEA discontinued the wiretap on July 11, 2005 because it appeared that López was using a different phone to conduct his drug-related conversations.
Báez continued to provide the DEA with information and surveillance opportunities until October 11, 2005. After that, he ceased contact with the DEA. On November 16, 2005, Canavan formally deactivated Báez as a confidential source.
While the New York DEA investigated López, Drouin and the Boston DEA conducted their separate investigation of Cartagena, whom agents believed to be a cocaine and heroin dealer in Massachusetts. During the course of the investigation, agents suspected López of being Cartagena's primary heroin supplier. Relying in part on information obtained from the New York investigation of López, Drouin applied for electronic surveillance on Cartagena's cellular telephone pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968.1 The wiretap order named Cartagena, López, and several of their associates as targets. The warrant for Cartagena's phone was issued for the period of September 29, 2005 to October 14, 2005. The only substantive information included in the application that was derived from Báez's cooperation concerned López's role in the conspiracy. As of the application date, Báez had not provided the DEA with any information that specifically concerned Cartagena. The district court subsequently granted a wiretap for another phone used by Cartagena and also granted wiretaps for phones used by López.
Based on information obtained from the investigation, a grand jury indicted Cartagena and eighteen other co-conspirators on November 13, 2006. Cartagena was charged with conspiracy to distribute heroin and cocaine, maintaining a place for drug purposes, and money laundering in violation of 21 U.S.C. § 846, 21 U.S.C. § 856(a)(1), and 18 U.S.C. § 1956(h), respectively. On August 30, 2006, Cartagena's co-defendant, the former informant Báez, filed a motion to suppress evidence gathered from New York and federal wiretaps, arguing that the wiretap affidavit was tainted by false and misleading statements and material omissions, and that the Government failed to meet the "necessity requirement" of the state and federal statutes because less intrusive investigatory techniques were available. 18 U.S.C. § 2518(1)(c); N.Y.Crim. Proc. Law §§ 700.15(4), 700.20(2)(d). Báez also moved for an evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), to evaluate the alleged material omissions and false statements in the federal and state wiretaps. Cartagena and several other defendants joined Báez's motions.
The district court denied the motion to suppress as to both the state and federal wiretaps. Regarding the New York wiretap, the district court deemed the motion moot because the Government stated it would not offer evidence obtained from the New York wiretap, and further, no information obtained from that wiretap had been used in the federal wiretap application. United States v. López, No. 05-10304-GAO, 2007 WL 4556904, at *2 (D.Mass. Dec. 12, 2007). Turning to the federal wiretap, the district court found that the facts set forth were "minimally adequate" to support a necessity determination and that the wiretap applications met the statutory requirements of § 2518(c). Id. at *6.
The district court briefly addressed the request for a Franks hearing, finding that there had not been a substantial preliminary showing that the affidavit omitted material facts knowingly and intentionally, or with reckless disregard for the truth. Id. Additionally, because none of the omitted facts would have been material to a probable cause finding, the district court denied the request for a Franks hearing. Id.
Separate from, but related to, the suppression and Franks motions, Cartagena moved to compel the production of documents relevant to his motions to suppress on November 16, 2006. The magistrate judge denied the motion holding that, because Cartagena had not presented any evidence supporting his claim that material facts were omitted concerning other informants' activities or the scope of the information they could provide, the government was permitted to withhold the documents in order to shield the identities of its confidential informants. Cartagena objected to the magistrate judge's ruling. The district court affirmed the magistrate judge's denial of the motion.
On August 8, 2007, Cartagena filed another discovery motion for in camera inspection of handwritten notes of the Special Agents who prepared the Title III and New York wiretap affidavits. The district court denied the motion on December 12, 2007, holding that Cartagena's request for in camera review was not sufficiently particularized and focused. Following the denial of his motions, Cartagena entered a conditional plea of guilty, reserving his right to appeal the denial of the motions to suppress, for a Franks hearing, and to compel discovery. The district court then sentenced Cartagena to three concurrent 150 month terms. This appeal followed.
Cartagena challenges the sufficiency of the government's showing of necessity pursuant to § 2518(1)(c) of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2518. Section 2518(1)(c) sets forth the necessity requirement. It requires that law enforcement officials applying to use electronic surveillance 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." Id. In reviewing the government's showing of necessity, our role "is not to make a de novo determination of sufficiency as if [we] were [the issuing judge], but to decide if the facts set forth in the application were minimally adequate to support the determination that was made." United States v. Ashley, 876 F.2d 1069, 1074 (1st Cir.1989)(quoting United States v. Scibelli, 549 F.2d 222, 226 (1st Cir.1977))(internal quotation marks omitted).
To establish necessity, the government is not required to show that other investigative methods have been wholly unsuccessful, United States v. Villarman-Oviedo, 325 F.3d 1, 9 (1st Cir.2003), nor must the government exhaust all other investigative measures before...
To continue reading
Request your trial
-
United States v. Carmona-Bernacet
...Roviaro v. United States, 353 U.S. 53, 59, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). This privilege is "not absolute." United States v. Cartagena, 593 F.3d 104, 112–13 (1st Cir. 2010). "Where the disclosure of an informant's identity, or of the contents of his communication, is relevant and helpf......
-
United States v. Acosta
...of investigation would fail or are too dangerous. United States v. Weber, 808 F.2d 1422 (11th Cir.1987); see also United States v. Cartagena, 593 F.3d 104, 110 (1st Cir.2010) (the statute's “ ‘full and complete statement’ requirement does not mandate that officers include every single detai......
-
United States v. Kazarian
...subjects were often behind closed doors. See 9/2/09 Koch Aff. at 022571-72. See Gambino, 734 F.Supp. at 1103; United States v. Cartagena, 593 F.3d 104, 110 (1st Cir. 2010) ("Even if traditional investigative procedures produce some results, the partial success of the investigation does not ......
-
United States v. Appolon
...denying his post-trial motion for an evidentiary hearing or discovery. Our review is for abuse of discretion. See United States v. Cartagena, 593 F.3d 104, 112 (1st Cir.2010); United States v. Theodore, 354 F.3d 1, 7 (1st Cir.2003). During the trial, Levine's counsel, Isaac Borenstein, bega......