U.S. v. MelÉndez–santiago

• Decision Date: 30 June 2011
• Docket Number: No. 08–2394.,08–2394.
• Citation: 644 F.3d 54
• Parties: UNITED STATES of America, Appellee,v.Elkin MELÉNDEZ–SANTIAGO, a/k/a Carlos, a/k/a Caliche, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

644 F.3d 54

UNITED STATES of America, Appellee,

v.Elkin MELÉNDEZ–SANTIAGO, a/k/a Carlos, a/k/a Caliche, Defendant, Appellant.

No. 08–2394.

United States Court of Appeals, First Circuit.

Heard March 7, 2011.Decided June 30, 2011.

Jorge L. Armenteros–Chervoni, for appellant.Thomas F. Klumper, Assistant United States Attorney, with whom Nelson Pérez–Sosa, Assistant United States Attorney, Chief, Appellate Division, and Rosa Emilia Rodríguez–Vélez, United States Attorney, were on brief, for appellee.Before LYNCH, Chief Judge, TORRUELLA and LIPEZ, Circuit Judges.

LYNCH, Chief Judge.

After a twenty-eight-day trial in 2007 a jury found Elkin Meléndez–Santiago, one of twelve indicted co-conspirators, guilty of conspiracy to import five or more kilograms of cocaine and one or more kilograms of heroin, as well as actual importation of five or more kilograms of cocaine, as part of a massive cocaine and heroin importation organization. Only one other defendant went to trial and he was also convicted. The remainder pled guilty.

In the conspiracy, Meléndez provided cash to co-conspirators to cover expenses for some drug smuggling operations and purchased cocaine and heroin imported into Puerto Rico for further distribution. Millions of dollars worth of drugs were imported. During one importation attempt in 2004, federal officers who had been tipped off to the drugs' arrival seized the drugs after a shootout with some of Meléndez's co-conspirators. The district court found it was known or foreseeable that firearms were being carried in furtherance of the conspiracy, justifying a sentence enhancement.

Meléndez was a cocaine addict who used cocaine daily, United States v. Melendez Santiago, 544 F.Supp.2d 76, 83 (D.P.R.2007) ( Melendez II ), but he had no prior criminal record. He was sentenced to 360 months' imprisonment, which was less than the life sentence advised by the U.S. Sentencing Guidelines.

His appeal argues two points. First, he argues the district court committed reversible error in not suppressing evidence of conversations recorded in two Title III wiretaps because the affidavits in support of the wiretaps did not sufficiently explain why traditional investigative procedures were inadequate, necessitating wiretaps, see 18 U.S.C. § 2518(1)(c), (3)(c), and because the affidavits contained misleading information. He argues that the district court should have held a Franks hearing to permit him to establish that the affidavits included misleading information and that without such information, the affidavits would not have sufficed to establish probable cause for the wiretaps. See Franks v. Delaware, 438 U.S. 154, 155–56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Second, Meléndez argues the court erred in denying a second motion to suppress his own statements and confession to agents while in custody as involuntary under the Fifth Amendment or in violation of his Sixth Amendment right to counsel. The district court issued careful and helpful opinions on both motions. See Melendez II, 544 F.Supp.2d 76 (denying motion to suppress statements); United States v. Melendez–Santiago, 447 F.Supp.2d 144 (D.P.R.2006) ( Melendez I ) (denying motion to suppress wiretap recordings). We reject Meléndez's arguments and affirm.

I. The Title III Wiretap

A. Necessity

The initial determination as to compliance with the stringent standards for issuing a wiretap authorization, 18 U.S.C. § 2518(1), is made by the judge to whom the application is made. See United States v. Nelson–Rodriguez, 319 F.3d 12, 32 (1st Cir.2003) (explaining standard and procedure for wiretap warrants). At this later stage, appellate review of that authorization is not de novo, but deferential. We “decide if the facts set forth in the application were minimally adequate to support the determination that was made.” Id. (quoting United States v. Ashley, 876 F.2d 1069, 1074 (1st Cir.1989)) (internal quotation marks omitted).

Here, two wiretap authorizations resulted from applications dated November 23 and December 9, 2004, both supported by sworn affidavits by FBI agent Jose Mena. Both applications targeted certain cell phone numbers and were approved by a district court judge. These cell phone numbers were used by the conspiracy leader, Luis Alfredo De La Rosa–Montero, also known as “Luis Viagra” or “El Compadre,” to coordinate the drug conspiracy.

In order to be approved, the applications needed to show what is commonly referred to as the “necessity” of resort to wiretaps. United States v. Martinez, 452 F.3d 1, 4 (1st Cir.2006). To make this showing, wiretap applications must provide “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); see also id. § 2518(3)(c) (judge's duty to evaluate showing of necessity). In United States v. Villarman–Oviedo, 325 F.3d 1 (1st Cir.2003), we interpreted § 2518(1)(c) “to mean that the statement should demonstrate that the government has made ‘a reasonable, good faith effort to run the gamut of normal investigative procedures before resorting to means so intrusive as electronic interception of telephone calls.’ ” Id. at 9 (quoting United States v. Hoffman, 832 F.2d 1299, 1306–07 (1st Cir.1987)). In such a statement, “[i]t is not necessary ... to show that other methods have been entirely unsuccessful.” Id.

Our reading of the affidavits disproves Meléndez's contentions that they were insufficient to support issuance of the wiretap authorizations. Indeed, they were better than minimally adequate. The November 23 affidavit contained the available identifying information known about the conspirators, all Dominican or Puerto Rican nationals. The affidavit also described how three confidential sources and one confidential informant had at times aided the investigation, providing information about those who were working in the conspiracy and about particular prior shipments, information that had led to successful arrests and drug seizures. The affidavit described in twenty-five detailed pages the conversations and interactions the sources and informant had with De La Rosa, some of which were recorded by the sources and some of which were verified when transactions were interrupted and smugglers arrested by federal officials. The affidavit also described what information had been gleaned from existing pen register and trap and trace analysis of De La Rosa's phone numbers.

The November 23 affidavit also described the limited success of efforts to conduct physical surveillance of the conspiracy leader De La Rosa. Physical surveillance was especially difficult in St. Thomas, where De La Rosa lived, because the streets were narrow and foreigners easily spotted. De La Rosa and other conspirators stayed in areas frequented by other Dominican nationals who were part of the same criminal subculture. The conspirators were wary of surveillance and they, in fact, mounted vigilant counter-surveillance. The conspirators did not use their real names and distrusted others not like them. Federal agents either mounting surveillance or attempting to infiltrate the organization undercover who were not members of that subculture would be easily spotted, would not be trusted by other members of the conspiracy, and would consequently be at great risk. Importantly, at the time of the wiretap application, one of the confidential sources had been missing for five months and was presumed dead; another had been threatened with death and was no longer trusted by members of the organization.

The information from sources other than surveillance was also constrained. The affidavit explained why traditional investigative techniques that had not been used—a grand jury investigation, interviews with co-conspirators or their associates, or execution of search warrants—were, particularly given the limited information known about the co-conspirators' identities and roles, likely to tip off the co-conspirators as to the developing investigation without yielding much helpful information. Pen registers and trap and trace records were already being used and would continue to be used, but gleaned only limited information about the cell phones being used.

The December 9 application sought wiretap authorization for another, new cell phone number used by De La Rosa. The supporting affidavit was similar in its level of detail to the first, related affidavit.

The affidavits' exhaustive explanation of what facts were known, what details remained unknown, what investigative techniques had been used and what techniques were likely to be unhelpful in the specific context of this particular conspiracy clearly constituted “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). The affidavits certainly supported the determination to authorize the wiretaps. See Nelson–Rodriguez, 319 F.3d at 32–33.

B. Alleged Misleading Information

Meléndez argues that the affidavits failed to disclose that the agent who signed them was himself of Dominican origin, as was one of the confidential sources, and that they understated the scope of that source's knowledge about the internal workings of the criminal conspiracy. These arguments are in service of Meléndez's hypothesis that someone of Dominican origin could easily have been slipped into the organization as an undercover agent, and that alternatively, the confidential source must already have had sufficient knowledge about the conspiracy's organization, both facts obviating any need for wiretaps.

Meléndez takes it one step further and argues that because these facts were so obviously material, the affidavit misled the district court judges who authorized the wiretaps into authorizations they would not...