United States v. Castaneda-Ontiveros
| Decision Date | 19 August 2019 |
| Docket Number | Case No. 2:17-CR-20074-04-JAR |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. MARTIN CASTANEDA-ONTIVEROS, Defendant. |
| Court | U.S. District Court — District of Kansas |
This matter comes before the Court on Defendant Martin Castaneda-Ontiveros' Motion to Suppress (Doc. 175). Defendant contends that certain wiretaps involving "Target Phones 21 through 29" were obtained by the Government in violation of 18 U.S.C. § 2510, the Fourth Amendment, and applicable case law. The Government has responded (Doc. 187), and the Court held a hearing on July 19, 2019, during which the parties presented arguments. The motion is fully briefed, and the Court is prepared to rule. For the reasons stated below, Defendant's motion to suppress is denied.
As part of an investigation into a drug-trafficking organization, DEA agents obtained authorization to intercept wire and/or electronic communications of multiple cellular phones pursuant to orders signed in the District of Kansas. In total, there were nine orders authorizing thirty-day interception periods. An affidavit prepared by DEA Special Agent David Maguire describing the goals of the investigation in learning about the scope, leadership, and operating locations of the conspiracy supported each wiretap application. The affidavits also explained the need for wiretaps based on the difficulty and lack of success in using other investigative techniques, as explained in further detail below.
Defendant seeks to suppress the fruits of three orders: (1) Target Telephone 21, dated April 6, 2016; (2) Target Telephones 22, 23, and "various and changing phones of 'Primo,'" dated May 9, 2017; and (3) Target Telephones 26, 27, 28, and 29.1 These orders were signed by U.S. District Judge Daniel D. Crabtree.
On November 30, 2017, Defendant was indicted on five counts in a sealed, thirteen-count Grand Jury Indictment.2 Defendant was arrested as part of a "take-down" on December 19, 2017. On January 17, 2018, Defendant was charged in a Superseding Indictment, charging Defendant with identical offenses listed in the November 30, 2017 indictment.3
Defendant challenges the sufficiency of the wiretaps on the basis that the affidavits supporting these wiretaps did not meet the necessity requirement set forth under 18 U.S.C. § 2518(1)(c). Defendant argues that necessity was lacking because (1) the Government had met the objectives of its investigation before applying for the wiretaps and (2) the affidavits did not sufficiently demonstrate that normal investigative procedures had failed or were likely to fail if used. The Government responds that the affidavits established the necessity requirement, and further, Defendant lacks standing to challenge the wiretap of Target Phone 21.
Under 18 U.S.C. § 2518(1)(c), each wiretap application must include "a full andcomplete 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."4 Additionally, before authorizing a wiretap investigation, a court must 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."5 "Normal" investigative procedures include standard physical and video surveillance, questioning of witnesses and participants in the crime (including through the use of grand juries), executing search warrants, and the use of undercover agents or confidential informants.6 "This rule is known as the 'necessity' requirement."7 The purpose of this requirement is to "ensure that the relatively intrusive device 'is not resorted to in situations where traditional investigative techniques would suffice to expose the crime.'"8
In determining whether a wiretap application is supported by a showing of necessity, a court must consider "all the facts and circumstances" and read the necessity requirement "in a common sense fashion."9 To meet the necessity requirement, the government need not exhaust all other conceivable investigative procedures before resorting to wiretapping.10 Rather, if any traditional investigative techniques are not used, the government must explain with particularity why it did not employ these techniques.11 Once a wiretap application is authorized, thedefendant bears the burden of proving that the authorization was invalid.12 "If a defendant succeeds in showing that the necessity requirement was not met, evidence seized pursuant to the wiretap must be suppressed."13
To establish standing to challenge the validity of a wiretap application, a defendant must demonstrate that he or she is an "aggrieved person" under the meaning of 18 U.S.C. § 2518(10)(a).14 An "aggrieved person" is defined as "a person who was a party to any intercepted wire, oral, or electronic communication or a person against whom the interception was directed."15 To meet this definition, a defendant must generally show that "(1) he was a party to the communication, (2) the wiretap efforts were directed at him, or (3) the interception took place on his premises."16
As an initial matter, the Government challenges Defendant's standing as to Target Phone 21. Defendant asserts that he has standing as an "aggrieved person" "to the extent he was a party to certain conversations or referred to in certain conversations that were recorded on phones 21 through 29, and now those conversations are being or will likely be used as evidence against him."17 While the Government agrees that Defendant was intercepted or identified as a target subject for Target Phones 22 through 29, the Government asserts that Defendant is not an "aggrieved person" simply because he was "referred to in certain conversations" recorded on Target Phone 21. TheCourt agrees. Defendant was not a party to the intercept, the wiretaps were not directed at him, and the wiretap did not take place on his premises. Merely being "referred to" in an intercept is not sufficient to establish standing as an "aggrieved person." Accordingly, the Court finds that Defendant does not having standing to challenge the intercept to Target Phone 21.18 Nevertheless, out of an abundance of caution, the Court also considers whether this wiretap application satisfied the necessity requirement.
Defendant argues that the Government cannot establish necessity because "most of the primary objectives of the government's investigation had been achieved" when the Government applied for wiretaps.19 The Government responds that "the target subjects were not all federally prosecutable prior to the Court's grant of Title III authority," and thus it had not achieved the legitimate goals of the investigation at the time it submitted wiretap applications.20 Each affidavit describes the following goals of the investigation:
Defendant asserts that before the Government had applied for any wiretap orders, it already knew the following: (1) key personnel, (2) the leader was known by name, (3) the scope of the drug distribution network, and (4) the location of stash houses. Defendant also argues that the Government has failed to explain specifically how a wiretap would shed light on the management and disposition of proceeds of the drug trafficking organization. Finally, Defendant points to the fact that the wiretaps at issue came at the tail-end of the investigation, suggesting that the investigation had already run its course. The Government responds that it could not have prosecuted all of the target subjects with the crimes they are now charged with, absent the intercepts, nor had it met the legitimate goals of the investigation when it applied for the wiretaps.
As an initial matter, the Court finds that the objectives of the investigation were not overly broad or illusory. The Tenth Circuit has found that goals similar to those listed in the Government's affidavits are appropriate.22 Additionally, the Court finds Defendant's assertion that the objectives of the investigation were already achieved at the time of the wiretap applications to be without support. Although the Government certainly knew some of the information, such as some key personnel or stash locations, the wiretaps were permissibly used to further the stated goals of the investigation, including identifying the "full scope," "key personnel . . . and others unknown," and "identities and roles of all suppliers."23 The standard for assessing necessity is not whether the Government could prosecute some individuals for some crimes; rather, the Court considers whether the objectives were legitimate goals. TheCourt finds that the objectives here were legitimate. Thus, although the Government learned about various aspects of the conspiracy throughout its investigation, the Government did not achieve the objectives of the investigation prior to the wiretap applications.
Defendant also argues that the Government failed to adequately show that normal investigative procedures were tried and failed, were unlikely to...
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