U.S. v. Concepcion

• Decision Date: 31 August 2009
• Docket Number: Docket No. 08-3785-cr.
• Citation: 579 F.3d 214
• Parties: UNITED STATES of America, Appellant, v. Alexander CONCEPCION, also known as Alex Concepcion, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

579 F.3d 214

UNITED STATES of America, Appellant, v. Alexander CONCEPCION, also known as Alex Concepcion, Defendant-Appellee.

Docket No. 08-3785-cr.

United States Court of Appeals, Second Circuit.

Argued: June 3, 2009.

Decided: August 31, 2009.

William J. Harrington, Assistant United States Attorney, for Lev L. Dassin, Acting United States Attorney for the Southern District of New York (John T. Zach, Jonathan S. Kolodner, on the brief), for Appellant.

Darrell B. Fields, Federal Defenders of New York, for Defendant-Appellee.

Before: McLAUGHLIN, CALABRESI, and SACK, Circuit Judges.

McLAUGHLIN, Circuit Judge.

The United States appeals an order by the United States District Court for the Southern District of New York (Scheindlin, J.) suppressing evidence obtained pursuant to a wiretap. The wiretap had been authorized under 18 U.S.C. § 2518 by a different district judge in the Southern District of New York (Marrero, J.). In holding that the evidence should be suppressed, Judge Scheindlin found insufficient the same representations that Judge Marrero had accepted: that "normal investigative procedures ha[d] been tried and ha[d] failed or reasonably appear[ed] to be unlikely to succeed if tried or to be too dangerous." 18 U.S.C. § 2518(3)(c).

The Government argues that its affidavit in support of its wiretap application established that a wiretap was necessary to its investigation. While the Government's affidavit was skimpy in details as to whether other investigative techniques were likely to succeed, we conclude, nonetheless, it did set forth facts "minimally adequate" to support Judge Marrero's initial determination. Accordingly, we reverse and remand.

BACKGROUND

In 2007, an incarcerated confidential informant ("CI") informed the Government that his former cellmate, Alexander Concepcion, planned to assist foreign terrorists in attacking the United States. Based on the CI's allegations, the FBI's Joint Terrorism Task Force applied to the District Court for authorization to wiretap Concepcion's cell phone under 18 U.S.C. § 2518. The Government was required to provide to the court "a full and complete statement as to whether or not other investigative procedures ha[d] been tried and failed or why they reasonably appear[ed] to be unlikely to succeed if tried or to be too dangerous." 18 U.S.C. § 2518(1)(c).

The district court granted the application on June 20, 2007, with the wiretap to expire 30 days later. The FBI found no evidence of terrorism, but the wiretap did lead the FBI to believe that Concepcion was involved in drugs and weapons trafficking.

On July 20, 2007, the Government submitted a second application to the district court (Marrero, J.) that focused just on Concepcion's alleged drugs and weapons trafficking. Agent Eric Paholsky of the FBI's Gangs, Criminal Enterprises, and Drugs Group submitted an affidavit detailing how several investigative techniques either had failed or were likely to fail. Paholsky first explained that the Government could not use its original CI because he was in prison, and Concepcion, an experienced trafficker, would be unlikely to deal with a prisoner under constant surveillance. The Affidavit also recounted how the FBI, in its efforts to investigate the terrorism allegations, had sought to introduce an undercover officer to Concepcion through the CI, but Concepcion would not engage with the officer. Based on that experience, Paholsky asserted that it would be impossible to introduce yet another agent to Concepcion with the aid of the CI. Because the Government was unable to identify other associates of Concepcion, the Government could not investigate his drug activities through the use of informants.

The Paholsky Affidavit next discussed the Government's 12 "limited surveillance" of Concepcion, explaining that "because none of the TARGET SUBJECTS except for .. .CONCEPCION have been definitively identified, surveillance is of limited utility at this time." The Affidavit continued,

[S]ince the June 20th Order was issued, agents have attempted to conduct physical surveillance of CONCEPCION on numerous occasions. They have seen CONCEPCION repeatedly change cars over this time period

... [and] seen him drive in an erratic manner. These things have made surveillance difficult. In addition, based on my training, I know that narcotics and weapons traffickers are extremely surveillance conscious.

Finally, the Affidavit evaluated a variety of other traditional investigative techniques: telephone records and pen registries would be ineffective because they would not reveal the actual content of conversations or the identities of speakers; interviews or grand jury subpoenas would be ineffective given that witnesses who could provide relevant evidence had not been identified; and search warrants were not appropriate because the locations where Concepcion and his cohorts stored documents, weapons, or narcotics had yet to be identified.

Based on these representations, Judge Marrero authorized the second wiretap application. In the following month, the Government used the wiretap to record conversations that, according to the Government, indicated Concepcion was indeed involved in a drug conspiracy.

In November 2007, Concepcion was arrested and charged in the Southern District of New York with 1 count of conspiracy to possess with intent to distribute over 50 grams of crack cocaine. The case was assigned to Judge Scheindlin. Concepcion moved to suppress the recordings of his conversations intercepted pursuant to the second wiretap authorization.

Concluding that the Government had failed to establish that other investigative techniques had failed or were likely to fail, Judge Scheindlin granted Concepcion's motion. In her decision, Judge Scheindlin discounted many of the Paholsky Affidavit's assertions, finding that "[t]he Government has shown that it has done little, other than the wiretap, in its investigation of Concepcion's drug-trafficking activities."

As to the Government's attempts to use its CI to introduce an undercover agent, the court noted that the Government made no attempt to introduce an undercover officer "for the purpose of buying drugs from, or selling drugs to, Concepcion."

Judge Scheindlin also discounted the Paholsky Affidavit's discussion of surveillance, finding that based on her experience in "numerous drug cases," techniques such as photographing Concepcion with his cohorts and trying to match those photographs to FBI databases were "underutilized."

Judge Scheindlin thus concluded that "the Government simply bypassed other more conventional techniques in favor of an already existing wiretap," which was an "impermissible shortcut." The Government now appeals.

DISCUSSION

We have jurisdiction to review a district judge's decision to suppress evidence, 18 U.S.C. § 3731, and we grant considerable deference to the district court's decision whether to allow a wiretap, ensuring only that "the facts set forth in the application were minimally adequate to support the determination that was made," United States v. Miller, 116 F.3d 641, 663 (2d Cir.1997) (internal quotation marks omitted).

Here, this deference standard is complicated by the fact that the district judge deciding the motion to suppress (Judge Scheindlin) essentially reversed the district judge who initially authorized the wiretap (Judge Marrero), leaving us with the Solomonic question: to which district judge do we owe this deference? However, we need not decide this issue because the parties agreed during oral argument that the decision we must make is whether Judge Marrero abused his discretion in approving the Government's application. Thus, we focus on whether the facts set forth by the Government were "minimally adequate" to support Judge Marrero's decision.¹

We turn to the substantive requirements of a wiretap application. In Title III of the Omnibus Crime Control and Safe Streets Act of 1968 ("Title III"), 18 U.S.C. § 2510 et seq., Congress struck a balance between "the needs of law enforcement officials [and] the privacy rights of the individual." See Miller, 116 F.3d at 663. While Title III allows for wiretaps in limited circumstances, law enforcement must apply for a court order before conducting such surveillance, 18 U.S.C. § 2518, and set forth "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. § 2518(1)(c). The district court must ensure that this standard has been met, id. § 2518(3)(c), so that "wiretapping is not resorted to in situations where traditional investigative techniques would suffice to expose the crime," United States v. Kahn, 415 U.S. 143, 153 n. 12, 94 S.Ct. 977, 39 L.Ed.2d 225 (1974).

We have acknowledged that "it would be in some sense more efficient to wiretap whenever a telephone was used to facilitate the commission of a crime. But the statutory requirement ... reflects a congressional judgment that the cost of such efficiency in terms of privacy interests is too high." United States v. Lilla, 699 F.2d 99, 105 n. 7 (2d Cir.1983). In other words, the question is not whether a wiretap provides the simplest, most efficient means of conducting an investigation; telephonic surveillance may only be used when it is necessary to assist in law enforcement. With these concerns in mind, we have emphasized that "generalized and conclusory statements that other investigative procedures would prove unsuccessful" will not satisfy Title III. Id. at 104.

To be sure, the Government is not required to exhaust all conceivable investigative techniques before resorting to electronic surveillance. "[T]he statute only requires that the agents inform the authorizing judicial officer of the nature...