U.S. v. Torres
| Decision Date | 02 October 1997 |
| Docket Number | Civil Action No. 97-20034-EEO. |
| Parties | UNITED STATES of America, Plaintiff, v. Alfredo TORRES, Jose Torres, a.k.a Chepo, Andres Delafuente, Oscar Torres, Saul Torres, Abel Longoria, Pedro Ulloa, Erasmo Castaneda, Eloina Torres, a.k.a. Eloina Saucedo, Blanca Alicia Sandoval, Jose Gomez, a.k.a. Chepe, and Juan Gomez, Defendants. |
| Court | U.S. District Court — District of Kansas |
Michael L. Harris, Office of Federal Public Defender, Kansas City, KS, Cenobio John Lozano, Jr., Harrisonville, MO, for Alfredo Torres.
Richard L. Carney, Kansas City, KS, for Jose Torres.
Scott C. Gyllenborg, Norton, Hubbard, Ruzicka & Kreamer, L.C., Olathe, KS, for Andres Delafuente.
Michael G. Highland, Bonner Springs, KS, for Oscar Torres.
James T. George, Lawrence, KS, for Abel Longoria.
John C. Donham, Overland Park, KS, for Pedro Ulloa.
J. Steven Schweiker, Overland Park, KS, for Erasmo Castaneda.
Theodore J. Lickteig, Overland Park, KS, for Eloina Torres.
Robert A. DeCoursey, Kansas City, KS, for Blanca Alicia Sandoval.
Thomas E. Foster, Foster & Foster, Overland Park, KS, for Jose Gomez.
Robert W. Manske, Olathe, KS, for Juan Gomez.
Pending before the court are the following pre-trial motions of various defendants in the above-entitled case:
Motion of defendant Eloina Torres to exceed maximum fees and for interim vouchers (Doc. # 178);
Motion of defendant Jose Gomez to suppress (Doc. # 176);
Motion of defendant Abel Longoria to suppress evidence (Doc. # 173);
Motion of defendant Alfredo Torres to suppress a letter illegally seized from the defendants (Doc. # 174);
Motion of defendant Erasmo Castaneda to suppress evidence (Doc. # 145);
Motion of defendant Jose Gomez to sever (Doc. # 170);
Motion of defendant Jose Torres to sever (Doc. # 175);
Motion of defendant Eloina Torres to sever her case for a trial separate from that of her co-defendants (Doc. # 155);
Motion of defendant Alfredo Torres to sever his charges for a separate trial from those of the other defendants (Doc. # 157);
Motion of defendant Blanca Alicia Sandoval to sever (Doc. # 147);
Government's Motion for handwriting exemplars as to defendants Eloina Torres, Blanca Alicia Sandoval and Jose Gomez (Doc. # 171);
Government's Motion to amend motion for handwriting exemplars (Doc. # 207);
Motion of defendant Eloina Torres to dismiss Indictment for loss of testimonial evidence (Doc. # 179);
Motion of defendant Blanca Alicia Sandoval to join in motion's (Doc. # 148);
Motion of defendant Oscar Torres to join in motions of other defendants (Doc. # 160);
Motion of defendant Abel Longoria to join motions (Doc. # 172);
Motion of defendant Jose Gomez to join motions (Doc. # 177); and
Motion of defendant Erasmo Castaneda to disclose criminal record and inducements (Doc. # 210).
The court has carefully reviewed the arguments, the applicable law, and the evidence adduced at the hearing held on September 29, 1997. Although the court announced its ruling at the hearing, this order is intended to memorialize those rulings in greater detail.
Motions to Exceed Maximum Fees and for Interim Vouchers.
Eloina Torres' counsel, Theodore Lickteig, has filed a motion To Exceed Maximum Statutory Fees and for Permission to Submit Interim Vouchers (Doc. # 178). The court finds such motion is premature. Based on the facts and circumstances before the court at the present time, the court is unable to certify that defense counsel is entitled to payment in excess of the maximum amount of attorneys' fees provided in 18 U.S.C. § 3006A(d)(2). Accordingly, the court will defer ruling on the motion at this time.
Robert Manske, Juan Gomez' counsel, has notified the court that he intends to withdraw his motion to Exceed Maximum Statutory Fees (Doc. # 158). In light of counsel's withdrawal of his motion, such motion will be denied as moot.
Motions to Suppress.
Wire and Oral Communications.
Defendant Jose Gomez has submitted a motion to suppress evidence of wire and oral communications obtained pursuant to 18 U.S.C. § 2518 (Doc. # 176). In support of this motion, Jose Gomez "joins in the arguments and authorities submitted by Juan Gomez and the other parties herein." The court finds that the arguments contained in the motion of Juan Gomez are nothing more than a bald recitation of the subsections of the statute. The motion makes little effort to apply the particular facts of this case to the statutory provisions. As to defendant's claim that the authorization order unlawfully and unconstitutionally authorized the interception of communications on an unlimited number of telephone lines unknown and unspecified in either the application, affidavit or order by permitting the interception of telephone calls rerouted using "call forwarding features," the court finds defendant's claim inapposite, inasmuch as such authorization does not appear in any of the orders.
Likewise, defendant's assertion that the order gave the intercepting officers "the blanket authority to `break in [on calls deemed non-pertinent] at thirty second intervals in order to ascertain whether or not the call continues to be non-criminal' regardless of the nature of the call" is inapplicable because such authorization does not appear anywhere in the orders.
Defendant's allegation that the inventory required by 18 U.S.C. 2518(8) was not served on Juan Gomez is also without merit. The inventory was served on Juan Gomez by mailing it to his counsel pursuant to an order issued by U.S. District Judge G.T. Van Bebber on September 8, 1997, two days before the motion was filed. Presumably, it had not yet been delivered when counsel drafted his motion.
At the hearing, Jose Gomez focused his argument more narrowly on the issue of the identification of Jose Gomez in the applications for orders authorizing the interception of wire and oral communications. Defendant contends he was not specifically identified in the applications, and thus the applications were defective. The court finds defendant's argument is without merit because, under the facts, the law does not require such specificity. 18 U.S.C. § 2518(1)(b)(iv) requires only that the government's application shall include "the identity of the person, if known, committing the offense and whose communications are to be intercepted." Thus, the law does not require the government to list people individually unless the government knows the person is committing an offense.
At the hearing, AUSA Patton explained that the reason the government's application did not name Jose Gomez was because the government had not identified Jose Gomez at that time. The applications and orders specifically identify certain individuals, and then state, "and others as yet unknown." The court finds that such identification is sufficient, under the circumstances.
In sum, the court is very familiar with the government's application, and our order authorizing interception of wire and oral communications in this case. We find that there was full compliance with all the requirements of 18 U.S.C. S § 2517 and 2518. "[A] wiretap authorization order is presumed proper, and the defendant carries the burden of overcoming this presumption." United States v. Castillo-Garcia, 117 F.3d 1179, 1186 (10th Cir.1997) (citing United States v. Quintana, 70 F.3d 1167, 1169 (10th Cir. 1995)). Based on the present showing, defendant has failed to carry his burden. Accordingly, defendant Jose Gomez' motion to suppress the contents of all wire and oral communications intercepted pursuant to 18 U.S.C. § 2518 should be and hereby is denied.
Robert Manske, Juan Gomez' counsel, has notified the court that he intends to withdraw his Motion to Suppress Evidence Derived From Electronic Surveillance (Doc. # 180). In light of counsel's withdrawal of his motion, such motion will be denied as moot.
Videotapes.
Defendant Abel Longoria seeks to suppress certain audio and video recordings made by an informant (Doc. # 200). Specifically, defendant seeks to exclude all seized conversations on audio and video tape that "occurred outside of the presence of the informant." Defendant also seeks to suppress all video images of him that were obtained outside the presence of the informant.
In his brief, defense counsel did not identify which tapes were allegedly made when the informant was not present. At the hearing, counsel did specify that possibly two tapes were at issue. AUSA Patton stated at the hearing that he intends to meet with defense counsel to review the tapes in question. Government and defense counsel represent that they agree on excluding portions of the two tapes, if it can be shown that the informant was not present in the room at the time when the taping occurred. It appears this matter may be resolved without a formal ruling from the court; therefore, the court will defer ruling on this matter at this time. If it is determined that the informant was not present during the recording of any portion of the tapes, the motion will be sustained as to those taped portions.
Defendant also seeks to suppress all audio and video tapes of conversations that were in Spanish, even though made in the presence of the informant and recorded by him. Defendant cites no case law or other authority to support his contention. The law is well settled that where a party to a conversation consents to the recording of that conversation, such recording is lawful. United States v. Rodriguez-Garcia, 983 F.2d 1563, 1569 (10th Cir.1993); United States v. Laetividal-Gonzalez, 939 F.2d 1455, 1460-61 (11th Cir.1991), cert. denied, 503 U.S. 912, 112 S.Ct. 1280, 117 L.Ed.2d 505 (1992) (). The courts that have addressed the issue have held that a defendant has no reasonable expectation of privacy in statements made in the presence of a government agent, even though the...
To continue reading
Request your trial
-
State v. Daino
...can be unequivocal and specific," citing United States v. Gordon , 173 F.3d 761, 766 (10th Cir. 1999), and United States v. Torres , 983 F. Supp. 1346, 1354-55 (D. Kan. 1997). Seeley , 2009 WL 500960, at *4. The panel also noted Seeley had told officers they could " ‘look around,’ " and it ......
-
State v. Daino
...can be unequivocal and specific," citing United States v. Gordon , 173 F.3d 761, 766 (10th Cir. 1999), and United States v. Torres , 983 F. Supp. 1346, 1354-55 (D. Kan. 1997). 2009 WL 500960, at *4. But in Seeley , defendant had also told the officers they could "look around." 2009 WL 50096......
- In re Koc
-
People v. Zamora
...such an expectation was not objectively reasonable in our increasingly multilingual society. Id. at 1183; see also United States v. Torres, 983 F.Supp. 1346, 1352 (D.Kan.1997) (finding no objective of privacy in conversation conducted in Spanish in presence of a third person), aff'd sub nom......