U.S. v. Solomonyan

• Decision Date: 18 September 2006
• Docket Number: No. 05 Cr. 327(RJH).,05 Cr. 327(RJH).
• Citation: 452 F.Supp.2d 334
• Parties: UNITED STATES of America v. Artur SOLOMONYAN, Christiaan Dewet Spies, Ioseb Kharabadze, Joseph Colpani, Michael Guy Demare, Armen Razmik Barseghyan, Spartak Vahagn Yeribekyan, Dmitriy Vorobeychik, Nikolai Nadirashvili, Levon Solomonyan, Allah McQueen, Rajab Chavis, Garegin Gasparyan, Michael Jimenez, Nieman Myles, William Jesus Thomas, Levan Chvelidze, Vakhtang Machitidze, Tigran Gevorgyan, Armand Abramian, Defendants.
• Court: U.S. District Court — Southern District of New York

452 F.Supp.2d 334

UNITED STATES of America v. Artur SOLOMONYAN, Christiaan Dewet Spies, Ioseb Kharabadze, Joseph Colpani, Michael Guy Demare, Armen Razmik Barseghyan, Spartak Vahagn Yeribekyan, Dmitriy Vorobeychik, Nikolai Nadirashvili, Levon Solomonyan, Allah McQueen, Rajab Chavis, Garegin Gasparyan, Michael Jimenez, Nieman Myles, William Jesus Thomas, Levan Chvelidze, Vakhtang Machitidze, Tigran Gevorgyan, Armand Abramian, Defendants.

No. 05 Cr. 327(RJH).

United States District Court, S.D. New York.

September 18, 2006.

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Louis V. Fasulo, Fasulo, Shalley & Dimaggio, LLP, Allan Paul Haber, Law Office of Allan P. Haber, David Wikstrom, Ira D. London, Law Office of Ira D. London, Raymond B. Grunewald, Raymond Grunewald & Associates, Winston Lee, Winston Lee Esq, James Michael Roth, Hurwitz Starnpur & Roth, Gregory E. Cooper, Ivan S. Fisher, Law Off. Ivan Stephan Fisher, Robert J. Krakow, Barry. Pincus, Charles A. Ross, Herrick, Feinstein LLP, Howard Lester Jacobs, Law Office of Howard L. Jacobs, John Michael Rodriguez, Law Office of John Rodriguez, New York, NY, John M. Burke, Paul J. Madden, Paul Madden, Esq., Brooklyn, NY, Arthur L. Wallace, Pampano Beach, FL, Robert Curtis Gottlieb, Law Office of Robert Gottlieb, Commack, NY, for Defendants.

Benjamin M. Lawsky, Miriam Elizabeth Rocah, U.S. Attorney's Office, New York, NY, for United States of America.

MEMORANDUM OPINION AND ORDER

HOLWELL, District Judge.

INTRODUCTION

The Indictment in this case charges twenty defendants variously in ten counts relating to trafficking in arms and firearms. Count One charges seven defendants .(Artur Solomonyan, Christiaan Dewet Spies, Ioseb Kharabadze, Joseph Colpani, Michael Guy DeMare, Armen Razmik Barseghyan, and Spartak Vahagn Yeribekyan) with a conspiracy to engage in the business of brokering activities with respect to the import and sale of foreign military weapons. Count Three charges all defendants (except Kharabadze and Yeribekyan) with a conspiracy to traffic in firearms, specifically machine guns. The remaining counts charge various defendants with substantive violations that were the object of the conspiracies as well as related violations involving the illegal transport of a firearm by a felon and illegal possession of a firearm by an illegal alien. To date, defendants Michael Jiminez, William Jesus Thomas, Vakhtang Machitidze, and Tigran Gevorgyan have pled guilty; Yeribekyan remains at large; and Levon Solomonyan is not presently being prosecuted due to a disabling car accident.¹ The fourteen remaining defendants are scheduled to proceed to trial on October 30, 2006.

Pending before the Court are defendants' pretrial motions. Collectively, the motions include, but are not limited to, motions to suppress evidence, motions to suppress statements, motions to dismiss certain charges, demands for bills of particulars, requests for pretrial evidentiary hearings, severance motions, and motions seeking additional discovery and pretrial disclosures. Defendants' motions, with two exceptions noted below, are denied.²

DISCUSSION

1. DEFENDANTS' MOTIONS TO SUPPRESS WIRETAP EVIDENCE

Defendants Solomonyan and Spies move to suppress all evidence derived from the court-authorized wiretaps of their cell phones. Separately, defendant Kharabadze moves to suppress all evidence obtained from the wiretap surveillance of his home phone. Additionally, defendant Solomonyan requests a Franks hearing to challenge the accuracy of the affidavit submitted in support of the wiretap applications regarding the cell phones.

Under 18 U.S.C. § 2518, a federal court may issue a wiretap order if it determines, on the basis of the facts submitted by the applicant, that there is probable cause to believe (1) that an individual was committing, had committed, or is about to commit a crime; (2) that communications concerning that crime will be obtained through the wiretap; (3) normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous; and (4) that the premises to be wiretapped were being used for criminal purposes or are about to be used or owned by the target of the wiretap. See 18 U.S.C. § 2518(3)(a)-(d); United States v. Diaz, 176 F.3d 52, 110-11 (2d Cir.1999); United States v. Wagner, 989 F.2d 69, 71 (2d Cir.1993); United States v. Ambrosio, 898 F.Supp. 177, 181 (S.D.N.Y.1995). Defendants contend that the affidavits submitted in support of both wiretap applications failed to demonstrate probable cause to believe that crimes were being committed. In addition, defendants argue that the affidavits did not demonstrate that alternative investigative techniques had been exhausted.

A. Probable Cause

Probable cause to support a wiretap order exists when "facts made known to the issuing court are sufficient to warrant a prudent man in believing that evidence of a crime could be obtained through the use of electronic surveillance." United States v. Ruggiero, 824 F.Supp. 379, 398 (S.D.N.Y.1993); aff'd, 44 F.3d 1102 (2d Cir.1995). In making this determination, the "task of the issuing magistrate is simply to make a practical, coin: mon-sense decision whether, given all the circumstances set forth in the affidavit before him . . . there is a fair probability that . . . evidence of a crime will be found . . . ." Ill. v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). "Probable cause is not a particularly demanding standard. `It is clear that only the probability, and not the prima facie showing, of criminal activity is the standard of probable cause: " United States v. Scala, 388 F.Supp.2d 396, 401 (S.D.N.Y.2005) (quoting Gates, 462 U.S. at 235, 103 S.Ct. 2317 (internal quotation marks omitted)). Moreover, the issuing court's determination of probable cause is entitled to "substantial deference," Wagner, 989 F.2d at 72, and any doubt about the existence of probable cause must be resolved in favor of upholding the issuing court's order. See Gates, 462 U.S. at 237 n. 10, 103 S.Ct. 2317; United States v. Labate, No. 00 Cr. 632(WHP), 2001 U.S. Dist. LEXIS 6509, 2001 WL 533714, at *16 (S.D.N.Y. May 18, 2001).

The affidavit submitted by Mario Pisano, Special Agent with the Federal Bureau of Investigation ("FBI"), in support of the government's application for authorization to intercept wire communications over Spies's and Solomonyan's cell phones is based on numerous sources. (See Mario Pisano Aff., Apr. 7, 2004, Affirmation of Benjamin M. Lawsky, July 10, 2006 ("Lawsky Affirmation"), Ex. A ("First Pisano Affidavit").) The primary source was information provided to the government by a confidential informant ("CI") who had direct contact with Spies and, subsequently, Solomonyan. According to the CI, Spies talked of a contact who was looking to sell military weapons, including large quantities of rocket propelled grenades ("RPGs"). (Id. ¶ 16.) Spies then set up a meeting with his contact, later identified as Solomonyan, which took place on March 10, 2004. At the meeting, Solomonyan discussed the terms of sale of a shipment of RPGs, including the type of RPG, price, and how the weapons would be transported. (Id. ¶24) A subsequent meeting was held on March 17, 2004 at which time Solomonyan provided further details on the proposed sale of RPGs and the possibility of selling other military weapons. (Id. ¶ 25.)

Solomonyan contends that the First Pisano Affidavit is based solely on information provided by the CI, but the affidavit in fact cited substantial corroboration of the CI's reports. There was physical surveillance of the March 10 meeting at which Spies introduced Solomonyan to the CI. (Id. ¶17). Phone toll records confirmed numerous calls between Solomonyan and Spies and between Spies and the CI. (Id. ¶ 27.) Certain calls between Spies and the CI that were made with Spies's cell phone were also recorded. In one such call on April 2, 2004, Spies and the CI discussed the proposed deal and when the next meeting with Solomonyan would take place. (Id. ¶ 26.) Pen register records reveal that immediately after the Spies—CI conversation, Spies placed two calls to Solomonyan, called the CI, and then received a call from Solomonyan. Spies also used his cell phone to call the CI to tell him that Solomonyan would meet with them in two weeks. (Id.) The pattern and substance of these conversations, considered in the context of all of the information set forth in the First Pisano Affidavit, are more than sufficient to establish that Spies and Solomonyan probably had used and would continue to use their cell phones to engage in a conspiracy to traffic in military weapons. Wagner, 989 F.2d at 72-74 (applying "common sense, totality-of-the-circumstances test set forth in Gates" to find that confidential informant's information set forth in affidavit was truthful). While defendants are free to offer at trial an innocent explanation for their conduct, they are unable to establish that the issuing court lacked a substantial basis for authorizing wiretaps of Spies's and `Solomonyan's cell phones.

Similarly, the issuing court had a substantial basis for finding probable cause to authorize wiretap surveillance of Kharabadze's home phone because Agent Pisano submitted evidence that Kharabadze was using his home phone to engage in conspiratorial conduct with Solomonyan and Spies. The affidavit in support of the government's application for authorization to wiretap this phone described in detail numerous calls over the Kharabadze home phone that were intercepted pursuant to the wiretaps on the Solomonyan and Spies cell phones. (See Mario Pisano Aff., May 28, 2004, Lawsky Affirmation, Ex. B ("Second Pisano Affidavit").) For example, on April 23, 2004, Solomonyan called Kharabadze at home to determine if "everything was...