U.S. v. Pappas

• Decision Date: 05 January 2004
• Docket Number: No. CRIM.3:02 CV 191(CFD).,CRIM.3:02 CV 191(CFD).
• Parties: UNITED STATES of America v. David PAPPAS
• Court: U.S. District Court — District of Connecticut

298 F.Supp.2d 250

UNITED STATES of America v. David PAPPAS

No. CRIM.3:02 CV 191(CFD).

United States District Court, D. Connecticut.

January 5, 2004.

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David J. Wenc, Waterside Office Park, Windsor Locks, CT, for Defendant.

John H. Durham, Michael J. Gustafson, Peter D. Markle, U.S. Attorney's Office-NH, New Haven, CT, Raymond F. Miller, U.S. Attorney's Office-HFD, Hartford, CT, for Plaintiff.

RULING ON DEFENDANT'S MOTION TO SUPPRESS EVIDENCE

COVELLO, District Judge.

The defendant, David Pappas, was indicted for conspiracy to possess with intent to distribute, and to distribute, 5 kilograms or more of a mixture and substance containing a detectable amount of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(ii), and 846. Pappas was indicted with 19 others for their alleged connection to a wide-spread cocaine trafficking conspiracy that was active in 2001 and 2002 in the Meriden, Connecticut area and was supplied by a Mexican Drug Trafficking Organization ("MDTO") through Phoenix, Arizona.¹ The following co-defendants have pled guilty and have been sentenced or await sentencing: Samuel Virella, Jose Refugio Romero-Machado, Jose Luis Romero-Machado, Marin Felipe Zamudio-Gastelum, Adrian Tapia, Mario Quinterro, Jesus Perez, Abraham LaPorte, Jessica Acevedo, Efrain Rosario, Rudy Smith, Jeffrey Johnson, Jonathan Casillas, Travis Auala, and Miguel Valentine. Pappas and three other defendants await trial.

The investigation into the conspiracy was conducted by a task force comprised of FBI and DEA agents, Connecticut state troopers, and municipal police officers. The investigation included court-authorized wiretaps on two telephones. Pending before the Court is Pappas's Motion to Suppress Evidence [Doc. # 213].² The motion seeks suppression of evidence obtained through wiretaps conducted on the telephones of co-defendants Samuel Virella ("Target Telephone I")³ and Jose Refugio Romero-Machado ("Target Telephone II") on the bases that (1) the Government did not make a sufficient showing that conventional investigative techniques had been tried and failed, or were otherwise unlikely to succeed, and (2) the Government omitted material facts from its affidavits in support of the two wiretaps that, had they been included, would have precluded the court's order authorizing the interception of wire communications because of a failure to meet the required showing of a failure of conventional investigative techniques.⁴ An evidentiary hearing was held on the motion to suppress evidence. For the following reasons, the motion is DENIED.

I. Background

In the course of the Task Force's investigation, the Government made two applications to the District Court for authorization to intercept certain wire communications. The first application, made on May 8, 2002, sought permission to intercept wire communications occurring over telephone number (203) 440-1197, subscribed to in the name of Kelly Pierce and located at 525 Crown Street, Meriden, Connecticut, which was the home of Samuel Virella. In its application, the Government identified that the wiretap intercept was expected to reveal: (1) the nature, locations, extent and methods of the narcotics trafficking business and operation of the named "Violators" and others yet unknown; (2) the identities and roles of their accomplices, aiders and abettors, co-conspirators and participants in their illegal activities; (3) the distribution and transfer of the contraband and money involved in those activities; (4) the existence and locations of records relevant to those illegal activities; (5) the existence, locations and sources of resources used to finance those illegal activities; (6) the locations and disposition of proceeds from those illegal activities; and (7) the locations of items used in furtherance of those activities.

In support of its wiretap application, the Government submitted the affidavit of FBI Special Agent Eric S. Grunder. In his affidavit, Special Agent Grunder detailed information that had been gathered about the narcotics-trafficking activity of Virella and his co-conspirators, and set forth information that the agent concluded constituted probable cause to believe that the violators were involved in the illegal activity, that the anticipated interceptees were using the target facility in connection with that activity, and that intercepted communications occurring over that facility would constitute evidence of that activity.

In a 10-page, 16-paragraph section of the affidavit (pages 33-44), Special Agent Grunder set forth the basis for his conclusion that normal investigative procedures would be inadequate or unlikely to achieve the objectives of the investigation, and that electronic surveillance, would, in his view, be necessary. Grunder specifically discussed in this section the use and limitations of physical surveillance, the grand jury, cooperating sources, undercover officers, subject interviews, search warrants, pen register and toll data, and consensually monitored meetings. With respect to each of these categories of conventional investigative methods, Special Agent Grunder acknowledged their successful, if limited, use in the investigation, and provided details as to why each was unlikely to result in the attainment of the objectives of the investigation.

The May 8, 2002 application was granted by then Chief Judge Alfred V. Covello and interceptions were initiated immediately and continued until Virella terminated service on his home telephone on May 18, 2002.

Subsequently, on May 30, 2002, the Government made an application for authorization to intercept wire communications occurring over telephone number (203) 507-4501, subscribed to by Francisco Montanez, 131 Crown Street, Apartment 1, Meriden, Connecticut, and used by Jose Refugio Romero-Machado. In support of its application, the Government submitted the affidavit of FBI Special Agent Mark Gentil. In his affidavit, Special Agent Gentil explicitly referenced and incorporated Special Agent Grunder's affidavit dated May 8, 2002.⁵ Special Agent Gentil's affidavit identified what the wiretap intercepts were expected to reveal and detailed information that had been gathered to establish the existence of probable cause to support the issuance of an order authorizing the interception of wire communications on the Romero-Machado phone. Special Agent Gentil also explained that while normal investigative procedures had been and would continue to be employed in the investigation, wiretap intercepts were the only investigative technique available with a reasonable likelihood of securing the evidence necessary to prove that the violators as denominated in that affidavit were involved in the illegal activity. Special Agent Gentil discussed the use and limitations of physical surveillance, federal grand jury subpoenas, confidential informants and cooperating witnesses, undercover police officers and agents, subject interviews, search warrants, pen registers/telephone tolls, and consensually monitored conversations and meetings.

The May 30, 2002 application was granted by Chief Judge Covello and interceptions were initiated immediately.

II. Legal Standard

The procedure for securing judicial authority to intercept oral communications is governed by 18 U.S.C. § 2518. More specifically, § 2518(1)(c) provides that any application for authorization to intercept electronic communications must 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. Similarly, § 2518(3)(c) requires that, as a condition of authorizing the wiretap, the reviewing judge find that "normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous." Id. This "necessity" requirement is "designed to assure 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).

However, these statutory conditions are "far from an insurmountable hurdle," and require only that the Government demonstrate "that normal investigative techniques would prove difficult ... [and not] that any other option would be doomed to failure." United States v. Bellomo, 954 F.Supp. 630, 638-39 (S.D.N.Y. 1997). Title III does not demand that every other conventional method of investigation be attempted unsuccessfully before electronic surveillance may be authorized. United States v. Young, 822 F.2d 1234, 1237 (2d Cir.1987); United States v. Lilla, 699 F.2d 99, 104 (2d Cir. 1983).

In addition, the sufficiency of a wiretap application must be reviewed in a "practical and common sense manner and need be only minimally adequate to support the issuing judge's determination of necessity," United States v. Trippe, 171 F.Supp.2d 230, 236 (S.D.N.Y.2001) (citing United States v. Torres, 901 F.2d 205, 232 (2d Cir.1990)), and the issuing judge's determination is entitled to substantial deference. Torres, 901 F.2d at 231; United States v. Wilkinson, 754 F.2d 1427, 1433 (2d Cir.1985); Bellomo, 954 F.Supp. at 639.

A defendant may also challenge a warrant affidavit on the basis that there were material omissions in the affidavit. Franks v. Delaware, 438 U.S. 154, 164-72, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). In order to invoke the Franks doctrine, a defendant bears the burden of proving that there were intentional and material misrepresentations or omissions in the warrant affidavit. U.S. v. Awadallah, 349 F.3d 42, 64 (2d Cir.2003). A defendant must show that the affiant knowingly and deliberately, or with a reckless disregard of the truth, made false statements or material omissions in his application for a warrant, and that such...