United States v. Cruz
| Decision Date | 19 March 2019 |
| Docket Number | CRIMINAL ACTION NO. 18-40014-TSH |
| Parties | UNITED STATES of America v. Erick CRUZ, Defendant. |
| Court | U.S. District Court — District of Massachusetts |
Mark J. Grady, Assistant US Attorney, United States Attorney's Office, Worcester, MA, for Plaintiff.
Brian E. Murphy, Sean M. Smith, Murphy & Rudolf LLP, Worcester, MA, for Defendant.
ORDER AND MEMORANDUM ON DEFENDANT'S MOTION TO SUPPRESS (Docket No. 110)
Erick Cruz ("Defendant") moves this Court to suppress the evidence obtained as a result of the interception of wire communications. For the reasons stated below, Defendant's motion (Docket No. 110) is denied.
Beginning in the summer of 2016, DEA officials suspected Jorge Burgos was involved in selling large quantities of cocaine and heroin in and around Worcester, Massachusetts. Before obtaining a wiretap from this Court, the Government had investigated Burgos for over a year. (Docket No. 112-1 ¶ 75) ("Wiretap Aff."). During that time, the Government employed several investigative methods including: statements of confidential sources, physical surveillance, monitored and or/recorded phone calls, pen register and trap-and-trace information, telephone records, seizing and searching a package found to contain three kilograms of cocaine, and queries of law enforcement records and intelligence databases. Id. ¶ 76.
These investigations revealed that Burgos purchased drugs from Deibby Garcia to resell to his own customers. Id. ¶ 54. For example, on November 13, 2017, Burgos allegedly purchased, or attempted to purchase cocaine from Garcia. Id. ¶¶ 40-52. Also, in October 2017, a confidential source made three controlled purchases from Burgos. Id. ¶ 36. In addition, agents made eleven controlled purchases of narcotics from Jose Ortiz and Roberto Ortiz, suspected members of Burgos' operation. Id. ¶ 34.
In December 2017, investigators still lacked detailed information on Burgos' drug trafficking organization and began to focus on Garcia who appeared to be Burgos' main supplier. Consequently, the Government obtained a wiretap authorized by this Court on Garcia's cell phone to learn more about the source of narcotics being distributed, the location of drugs being distributed, and the distributors.
The Government had limited success in learning about Garcia's organization through normal investigative methods including physical surveillance, confidential sources, prior wiretaps, and phone records. Id. ¶¶ 77-78. The Government argued that although confidential sources bought drugs from Burgos, they were unlikely to gain the information necessary to penetrate the internal operations of Garcia's and Burgos' drug trafficking organizations. Id. For example, informants were not privy to information such as sources of supply or the intended transportation route of the Burgos DTO. Id. ¶ 88. Accordingly, the Government asserted wiretap was necessary to fully reveal the manner and scope in which Garcia and his associates were involved in drug trafficking and because evidence was unavailable from other investigative avenues. Id. ¶ 150.
Communications intercepted following the wiretap revealed that Garcia distributed cocaine to several individuals in the Worcester area and received his supply from Puerto Rico. See generally Cruz Aff. Investigation further revealed that Defendant Cruz, a United States Postal Service ("USPS") Letter Carrier, conspired with Garcia to arrange the delivery of packages of cocaine shipped from Puerto Rico to addresses located on Defendant's USPS route. Id. ¶ 24. Defendant would then get the packages and give them to Garcia. Id. Defendant used a phone subscribed in his name to communicate with Garcia. Id. ¶ 54. Agents confirmed that the address listed for that phone number was Defendant's. Id.
In January 2018, Defendant texted Garcia two addresses in Marlborough to enable Garcia's supplier in Puerto Rico to ship two packages of cocaine to an address on Defendant's USPS route. Id. ¶¶ 57-63. Upon retrieving those packages, Defendant was to transfer the packages to Garcia. Id. However, while in transit, a trained narcotic sniffing canine positively alerted to the package. Id. ¶ 64. After a search warrant was obtained for the package, it tested positive for the presence of cocaine. Id. ¶ 65. On the morning of January 16, 2018, US Postal Inspectors arranged for the second package to be placed in Defendant's ordinary deliveries. Id. ¶ 66.
On January 16, 2018, Defendant retrieved the second package and arranged with Garcia to have a woman pick up the package. Id. ¶¶ 66-72. Later that day, agents observed the Defendant meet with a woman in the Marlborough area and give her a package. Id. ¶ 73. Shortly thereafter, agents retrieved that package, which contained cocaine, from the woman and arrested Defendant. Id. ¶¶ 73-80. Defendant identified a photo of Garcia's brother as the individual who paid him $ 500 for a previous delivery in December 2017. Id. ¶ 81.
In January 2018, Defendant was indicted and charged with one count of conspiracy to distribute cocaine, one count of possession of cocaine with the intent to distribute and one count of utilization of a communication facility in furtherance of narcotics trafficking offense. (Docket No. 2-2).
1. Wiretap
Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510 - 2520, promulgates the standards and procedures for the use of electronic surveillance. A judge may allow an application for interception of wire communications only when the following conditions are met:
18 U.S.C. § 2518(3). Defendant contends that the Government failed to satisfy the third requirement, commonly referred to as the "necessity" requirement. 18 U.S.C. § 2518(3)(c).
a. Necessity
The "necessity" requirement demands that "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." United States v. Rodrigues , 850 F.3d 1, 9 (1st Cir. 2017) (quotation marks and citations omitted). Accordingly, the wiretap applicant must show that "the government has made a reasonable, good faith effort to run the gamut of normal investigative procedures before resorting to means so intrusive as electronic interception of telephone calls." United States v. Martinez , 452 F.3d 1, 4 (1st Cir. 2006) (quotation marks and citations omitted). The First Circuit has ruled however that "the government is not required to show that other investigative methods have been wholly unsuccessful, nor must the government exhaust all other investigative measures before resorting to wiretapping." United States v. Cartagena , 593 F.3d 104, 109 (1st Cir. 2010) (citations omitted).
In order to satisfy the necessity requirement, the government must show that it "has used normal techniques but it has encountered difficulties in penetrating a criminal enterprise or in gathering evidence—to the point where (given the statutory preference for less intrusive techniques) wiretapping becomes reasonable." United States v. Abou-Saada , 785 F.2d 1, 11 (1st Cir. 1986). However, "bare conclusory statements that normal techniques would be unproductive, based solely on an affiant's prior experience" are not enough to satisfy the necessity requirement. United States v. Ashley , 876 F.2d 1069, 1072 (1st Cir. 1989).
Defendant argues that the Government prematurely acquired a wiretap before it utilized normal investigative methods. According to Defendant, it was therefore impossible to ascertain whether the wiretap was necessary. Defendant further argues that traditional methods, including confidential sources, physical surveillance, and search warrants in conjunction with other wiretaps were yielding successful results. Defendant, however, fails to consider the broad goals of the investigation. While traditional...
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