U.S. v. Melendez-Santiago, Criminal No. 05-302(DRD).
| Decision Date | 18 August 2006 |
| Docket Number | Criminal No. 05-302(DRD). |
| Citation | 447 F.Supp.2d 144 |
| Parties | UNITED STATES of America, Plaintiff, v. Elkin MELENDEZ-SANTIAGO (2), Defendant. |
| Court | U.S. District Court — District of Puerto Rico |
Ernesto G. Lopez—Soltero, United States Attorney's Office, San Juan, PR, for Plaintiff.
Jorge L. Armenteros—Chervoni, Luis R. Rivera—Rodriguez, Luis Rafael Rivera Law Office, San Juan, PR, for Defendant.
The matters pending before the Court are a Motion To Suppress Evidence Derived From Illegal Wiretaps And Electronic Intercepts; Request For Judicial Notice And For Franks Hearing Re: Necessity; And Memorandum Of Points And Authorities (Docket No. 71); Sealed Motion To Suppress Statements (Docket No. 73); and, Motion Submitting Exhibits For Motion To Suppress Illegal Wiretaps (Docket No. 74), filed by co-defendant Elkin Melendez—Santiago, and the motions to join the request to suppress evidence filed by co-defendants Tavarez and Tobal (Docket entries No. 101 and 137 respectively). For the reasons set forth below, all the requests to suppress evidence are DENIED.
On September 8, 2005, the Grand Jury returned an indictment against twelve co-defendants, being co-defendant Elkin Melendez—Santiago ("Meléndez") among them. Co-defendant Meléndez is mentioned as defendant Number 2 and appears charged in Counts One, Four and Seven. Count One charges a violation to Title 21 U.S.C. §§ 952(a) and 963, conspiracy to import narcotics in excess of 5 kilograms or more of cocaine and in excess of 1 kilogram of heroin; Count Four charges the actual importation of narcotics a violation of 21 U.S.C. § 952; and Count Seven contains the narcotics related forfeiture allegations.
On January 11, 2006, co-defendant Melendez filed a Motion to Suppress Evidence Derived from Illegal Wiretaps and Electronic Intercepts; Request for Judicial Notice and for Franks1 Hearing Re: Necessity; and Memorandum of Points and Authorities2 (Docket No. 71). On that same date, a Sealed Motion to Suppress Statements was filed by co-defendant Melendez (Docket No. 73). On January 13, 2006, the Court denied co-defendant Melendez' request to file statements under seal, as this motion does not constitute a sealed document, and ordered the unsealing of the motion. See Docket No. 75. The Court also requested a reply from the plaintiff, the United States of America (the "United States" or "government") by January 31, 2006 (Docket No. 75).
In compliance with this Court's Order, the United States timely replied to co-defendant Melendez' motion on January 31, 2006. (Docket No. 82). Thereafter, additional evidence regarding the Title III application and progress report was made available for in-chamber inspection on March 8, 2006. (Docket No. 98).
Co-defendant Melendez moves for the suppression of all statements intercepted from wireless cellular telephone numbers (787) 306-0876, 306-3375 and 406-5587, hereinafter "the target phone facilities." Meléndez further requests a Franks hearing "on the showing of necessity, and the material omissions and misrepresentations in the affidavits of FBI Special Agent Julio Mena" (hereafter "S/A Mena"), dated November 23, 2004 and December 9, 2004.
Based on co-defendant Meléndez' motion, all three target phone facilities were primarily used and were subscribed to Luis Alfredo De la Rosa-Montero, a/k/a "El Compadre" (co-defendant No. 1.) Co-defendant Meléndez further asks the Court to take notice of several other documents, allegedly on record in Criminal Case No. 04-278(JAG)3 and Misc. No. 04-308.4
In support of his request for a hearing, co-defendant Meléndez alludes to the two prong test set forth in Franks,5 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667, and proffers that S/A Mena recklessly omitted important information from the affidavit, and by doing so, erroneously induced the Court into determining that conventional investigative techniques had proven unsuccessful. Specifically, co-defendant Melendez asserts that:
(a) S/A Mena failed to disclose to the Court the background and involvement of CS-2 (Roberto De los Santos), a Dominican national, highly trusted within the drug smuggling organization who was privy to information regarding drug suppliers, recruitment of boat captains, security of boats and stash houses, obtained distributors for the shipments and participated, internationally, in the transportation of drug proceeds;
(b) S/A Mena mislead the Court by not revealing that he is also of "Dominican heritage," but rather asserted in his affidavit that "the FBI has been unable to infiltrate this organization with an undercover agent" because "the subjects of this investigation are of Dominican heritage and due to the nature of the enterprise these subjects are engaged-in, they tend to distrust individuals of different backgrounds" (Docket No. 71 at 18).
In sum, co-defendant Melendez contends that "the asserted inability of confidential informants and law enforcement officers to infiltrate the organization" constitutes a false statement; a statement recklessly made and thus, constituted the primary reason proffered to the Court while explaining why conventional investigative techniques were not successful in achieving the investigation's goals (Docket No. 71 at 19).
In asserting the insufficiency of the "necessity" requirement for validating a Title III request and Order, co-defendant Meléndez alludes to four basic arguments:
(1) S/A Mena's affidavit relies on boilerplate language that does not suffice Title III requirements;
(2) The government failed to demonstrate or distinguish how this drug conspiracy case differs from any other regular drug conspiracy investigation;
(3) S/A Mena's affidavit fails to show why conventional investigative techniques were insufficient to uncover the crime or its participants, as it fails to disclose the availability of a confidential source (-CS.2-), and how CS-2's cooperation evolved from September 23, 2004 thru December 9, 2004;
(4) Being there no legal basis for issuance of a Title III interception order, there was no basis for extending the initial Order of Interception, inasmuch as, the necessity requirement was not met on neither of S/A Mena's affidavits.
The government responded to co-defendant Meléndez' motion to suppress (Docket No. 82). In its response, the government alleges that a Franks hearing is not warranted, inasmuch as, co-defendant Meléndez' challenges are based not on evidence but rather on conclusory allegations. The government considers that co-defendant Meléndez' questioning of why an undercover agent was unable to infiltrate the organization, and why the Court was never appraised of S/A Mena's nationality, are factors totally irrelevant and, thus, not worth discussing (Docket No. 82 at p. 3).
On March 6, 2006 the government was instructed to submit additional relevant information regarding applications for interception, affidavits in support and information on cooperating individual Roberto de Los Santos (Docket No. 91).
Chapter 119 of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended, ("Title III"), governs the standards and procedures allowing for the interception of wiretaps and electronic communications, 18 U.S.C. §§ 2510-21. By placing statutory requirements on warrants authorizing wiretaps "extending beyond the constitutional minimum mandated for other search warrants" (United States v. Nelson-Rodriguez, 319 F.3d 12, 32 (1st Cir.2003)), Congress has "sought to protect the privacy of wire and oral communications while, at the same time, authorizing the use of electronic surveillance evidence obtained by law enforcement under specified conditions." United States v. Lopez, 300 F.3d 46, 51-52 (1st Cir.2002) (citing Bartnicki v. Vopper, 532 U.S. 514, 523, 121 S.Ct. 1753, 149 L.Ed.2d 787 (2001)). As such, "the interception of electronic communications by law enforcement authorities is an extraordinary investigative technique whose use `is to be distinctly the exception—not the rule.'" United States v. Lopez, 300 F.3d at 51 (citing United States v. Hoffman, 832 F.2d 1299, 1306 (1st Cir.1987)). Given Congress' concern for preserving privacy under Title III, the government shall strictly adhere to statutory requirements, and among other things is required to:
i. Seek approval from the U.S. Attorney General in order to apply to a federal judge for a wiretap order ii. If consent is obtained, the law enforcement officer must submit to the district Court a written application for a wiretap (18 U.S.C. § 2516(1)); and
iii. Before issuing the wiretap, the district judge must determine the existence of certain enumerated factors and requirements to be in a position to issue an ex-parte order authorizing the wiretap. 18 U.S.C. § 2518(1), (3), (4).
In order to ensure that the government performs a reasonable, good faith effort to use other viable normal investigative techniques before resorting to the wire interception and to assure that Title III procedures remain strictly the exception, law enforcement authorities seeking a wiretap warrant must submit a sworn affidavit, with a detailed proffer of:
a. The identity of the law enforcement officer making the application and the officer authorizing the application (18 U.S.C. § 2518(1)(a));
b. A full and complete statement of facts and circumstances warranting issuance of the wiretap6 (18 U.S.C. § 2518(1)(b));
c. "A full and complete application 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)). See also United States v. Kahn, 415 U.S. 143, 153, 94 S.Ct. 977, 39 L.Ed.2d 225 (1974); United States v. Hoffman, 832 F.2d...
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