United States v. Aguirre-Benitez
| Decision Date | 21 April 2017 |
| Docket Number | CRIMINAL CASE NO. 3:16-cr-00009-TCB-RGV |
| Court | U.S. District Court — Northern District of Georgia |
| Parties | UNITED STATES OF AMERICA v. EZEQUIEL AGUIRRE-BENITEZ and GAVINO RAMIREZ |
Defendants Ezequiel Aguirre-Benitez ("Aguirre-Benitez") and Gavino Ramirez ("Ramirez"), jointly referred to as "defendants," are charged with two counts of knowingly and intentionally possessing with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. [Doc. 1].1 Defendants have filed a "Joint Motion to Suppress Wiretaps," [Doc. 36], and each defendant has filed a motion to suppress evidence obtained from a search of their respective residences, [Docs. 34 & 37].2 The government opposes each of these motions, see [Docs. 41 & 42], and the parties filed supplemental briefs, [Docs. 52 &53]. For the reasons that follow, it is RECOMMENDED that defendants' "Joint Motion to Suppress Wiretaps," [Doc. 36], be GRANTED IN PART and DENIED IN PART3 and that defendants' motions to suppress evidence from the searches of their residences, [Docs. 34 & 37], be DENIED.
In or about September 2013, federal and state law enforcement officers began investigating a drug trafficking organization operating in the Atlanta metropolitan area and elsewhere. See [Doc. 41-1 at 38 ¶ 14]. In connection with that investigation the Drug Enforcement Administration ("DEA") received court authorization in the Northern District of Georgia to intercept wire and electronic communications over three cellular telephones ("federal wiretaps"). [Docs. 41-1, 41-2, & 41-3].
In connection with the investigation, on May 9, 2014, Assistant United States Attorney Lisa W. Tarvin submitted an "Application for Interception of Wire and Electronic Communications" to United States District Court Judge William S.Duffey, Jr. See [Doc. 41-1 (all caps omitted)]; see also [Doc. 36-5]. An affidavit signed by Nicholas S. Patten ("Officer Patten"), a task force officer with the Atlanta Field Division Office of the DEA, was submitted in support of the application.4
[Doc. 41-1 at 26-88]; see also [Doc. 36-2]. The application sought to intercept communications from TT#1 (803-613-4084) "subscribed to in the name of Pepito Perez, 6780 Mableton Parkway, SE, Mableton, Georgia, and believed to be used by GUS LNU."5 [Doc. 41-1 at 3-4]. Gus was subsequently determined to be defendant Aguirre-Benitez. [Doc. 41 at 19, 23; Doc. 42 at 6].
In the affidavit submitted in support of the wiretap application for TT#1, Officer Patten stated that the goal of the investigation was to disrupt and dismantle the entire drug trafficking organization and that the wiretap order would help reveal the full nature, extent, and methods of the drug trafficking, importation, transportation, and distribution business; the administration, control, and management of the drug trafficking business; the identities and roles of accomplices, aiders, abettors, conspirators, and other participants, including sources of supply, in their illegal activities; the manner and means of distribution and transfer of illegal narcotics and the money collection resulting therefrom; the existence and locationof drug records and drug proceeds; the location and source of resources used to finance the illegal activities; and the locations and instrumentalities used in furtherance of those activities. [Doc. 41-1 at 32-33 ¶ 11]. He then stated that the information contained in the affidavit was based on the "investigation, conversations intercepted through court-authorization, information provided by [other] agents," "information provided by confidential sources, information gathered by analysis of pen register, trap and trace, and telephone toll records, and [his] and other agents' training, experience and background as agents of the [DEA]." [Id. at 33 ¶ 12].
Officer Patten described in great detail the background investigation leading to the request for the wiretap order.6 See [id. at 35-82 ¶¶ 14-85]. Specifically, the affidavit described the investigation of a drug trafficking organization operating in the Atlanta area and elsewhere that began in September of 2013 when information was obtained about Julio, who was determined to be a methamphetamine supplier in Mexico who "uses workers in the United States to deliver methamphetamine to his customers, including [Gus] and an individual known only as [Reyes]." [Id. at 35¶ 14]; see also [id. at 28 ¶ 19].7 Officer Patten averred that W.T., R.S., B.S., and C.H. were believed to have been methamphetamine customers of Julio, who had since been caught with drugs and/or arrested on state drug charges. [Id. at 38 ¶ 19, 58 ¶ 53]. Officer Patten detailed a search of R.S.'s residence in January 2014, where agents seized a small quantity of methamphetamine, at which time R.S., who was cooperating with law enforcement, identified Gus as his source of supply and provided a telephone number (not TT#1) that Gus used to facilitate drug trafficking activities. [Id. at 36 ¶ 15]. R.S. informed agents that he received pound quantities of methamphetamine from Gus approximately twice each month for six months in business parking lots or hotel rooms in Newnan, Georgia. [Id. at 59 ¶ 54]; see also [id. at 46 ¶ 31]. Officer Patten stated that B.S. had provided information to law enforcement about Primo, a local methamphetamine distributor in the Atlanta area who worked for Julio, from whom she had purchased pound quantities of methamphetamine two to three times per week at different locations on South Cobb Drive in Smyrna, and Officer Patten averred that Primo and Gus were believed to be the same individual.8 [Id. at 36 ¶ 16, 60-61 ¶ 55]. Officer Patten explained thatC.H. was arrested for a state probation violation and provided information about Reyes, from whom he would typically purchase ten ounces of methamphetamine approximately twice per month in business parking lots in Hapeville, Georgia. [Id. at 58 ¶ 53]. At the time of his arrest, he informed law enforcement that he owed Julio $4,500. [Id.].
Officer Patten described that in March of 2014, a DEA confidential source ("DEA CS"), who was developed through a state drug investigation, identified Gus as a methamphetamine distributer in the Atlanta area, who directs and coordinates the delivery of methamphetamine and collection of drug money through couriers in Columbus, Georgia, and other locations outside of the Atlanta area, and provided agents with Gus' telephone numbers, including TT#1.9 [Id. at 37 ¶ 17, 50-51 ¶¶ 40-41]. On April 2 and April 30, 2014, the DEA CS was used to make controlled buys of methamphetamine from Gus, which Officer Patten explained were arranged and conducted through wire and electronic communications over TT#1.10 [Id. at 37 ¶ 18, 40-42 ¶¶ 21-24, 43-44 ¶¶ 26-29]. Also, in April of 2014, Officer Patten stated that HIDTA agents developed a confidential source ("HIDTA CS"), who was workingfor a drug organization, receiving instructions from Mirin in Mexico and delivering methamphetamine to customers in the Atlanta area. [Id. at 44 ¶ 30, 53 ¶ 48]. The HIDTA CS consented to agents intercepting communications over his/her telephones pursuant to a consensual wiretap. [Id.]. On April 30, 2014, a conversation between the HIDTA CS and Gus, using TT#1, was intercepted, whereby the HIDTA CS told Gus that Mirin had directed him/her to call, provided his number to contact, which was TT#1, and instructed him/her to "deliver 'work'" to Gus. [Id. at 44-45 ¶ 30, 53-54 ¶ 48]. As of the date of the application, Officer Patten affirmed that there had not been any other intercepted conversations between the HIDTA CS and Gus, nor had the HIDTA CS delivered any drugs to Gus. [Id. at 45 ¶ 30, 54 ¶ 48].11
Officer Patten detailed another confidential source, identified as GBI CS, who informed agents that Julio and Reyes were part of a drug trafficking organization that distributed methamphetamine in the Atlanta area and that customers ordered methamphetamine from Julio, who was in Mexico and employed Reyes to deliver the drugs in the Atlanta area. [Id. at 52 ¶ 44]. The GBI CS observed that the organization used "large sealed aluminum vegetable containers (cans) to concealand distribute methamphetamine." [Id.]. Officer Patten stated that the GBI CS provided agents with Julio's telephone number in Mexico and introduced an undercover agent into the organization through Julio,12 but that he/she did not have any information on Gus. [Id. at 52 ¶¶ 45-46].13
Officer Patten stated that the goal of monitoring TT#1 was to fully identify Gus, Julio, and their coconspirators and learn more about their drug trafficking activities in Mexico, Atlanta, and elsewhere; identify drug shipments being brought into the United States by this organization; identify existing and new phones being used by Gus, Julio, and coconspirators; learn more about the methods used by these individuals to receive shipments of methamphetamine and launder drug proceeds; and obtain information about the interaction, if any, between Julio, Gus, and Reyes. [Id. at 39-40 ¶ 20].
Officer Patten explained that a wiretap was necessary because alternative investigative procedures had been tried and failed or appeared unlikely to succeed if attempted and because interception of wire and electronic communications was necessary to accomplish the objectives of the investigation, which he again listed. [Id. at 46-47 ¶ 32]; see also [id. at 47-48 ¶ 34]. With respect to the use of confidential sources and undercover agents, Officer Patten detailed the use of the DEA CS, the GBI CS, the HIDTA CS, and the uncover agent and information obtained from these individuals, [id. at 50-58 ¶¶ 39-51], and stated that while agents in this investigation had used and were continuing to use...
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