United States v. Kazarian
| Decision Date | 18 May 2012 |
| Docket Number | 10 Cr. 895 (PGG) |
| Parties | UNITED STATES OF AMERICA v. ARMEN KAZARIAN et al., Defendants. |
| Court | U.S. District Court — Southern District of New York |
The Indictment in this case alleges that the twenty-eight named defendants were members of a racketeering organization that schemed to defraud Medicare of more than $100 million. In addition to RICO violations, the Indictment charges, inter alia, that the defendants conspired to commit health care fraud, bank fraud, money laundering, and access device fraud.
Defendant Davit Mirzoyan has filed:
The Court held a hearing on these motions on April 17, 2012 ("the April 17 hearing"). Having considered the parties' briefs, the oral argument at the April 17 hearing, andpost-hearing submissions, the Court concludes that Mirzoyan's pre-trial motions should be denied in their entirety. 1
Mirzoyan argues that the wiretap evidence obtained through court-authorized wiretaps should be suppressed because (1) the judges issuing the wiretap orders lacked jurisdiction; (2) the Department of Justice official who approved the applications lacked the authority to do so; (3) the Government's wiretap applications were not supported by probable cause; (4) the Government's applications do not demonstrate the necessity for a wiretap; and (5) the Government failed to comply with statutory minimization requirements.
An "aggrieved person" may seek to suppress communications intercepted by the Government. See 18 U.S.C. 2518(10)(a). Title III defines an "aggrieved person" as "a person who was a party to any intercepted wire, oral or electronic communication or a person against whom the interception was directed." 18 U.S.C. § 2510(11). The Government does not dispute that Mirzoyan has standing to move to suppress the wiretap evidence. (Gov't Br. at 12 (Dkt. No. 382))
18 U.S.C. § 2518(3).
S. Rep. No. 1097, 90th Cong., 2d Sess., reprinted in 1968 U.S.C.C.A.N. 2112, 2190.
Courts must take a "common sense approach" to the necessity requirement. United States v. Concepcion, 579 F.3d 214, 218 (2d Cir. 2009). Although "generalized and conclusory statements that other investigative procedures would prove unsuccessful" do not suffice, "the Government is not required to exhaust all conceivable investigative techniques before resorting to electronic surveillance." Id. (internal quotation marks omitted). "'[T]he statute only requires that the agents inform the authorizing judicial officer of the nature andprogress of the investigation and of the difficulties inherent in the use of normal law enforcement methods.'" Id. (quoting United States v. Diaz, 176 F.3d 52, 111 (2d Cir. 1999)). "[T]here is no requirement 'that any particular investigative procedures be exhausted before a wiretap may be authorized.'" United States v. Miller, 116 F.3d 641, 663 (2d Cir. 1997) (quoting United States v. Young, 822 F.2d 1234, 1237 (2d Cir. 1987) (internal citations omitted).
This Circuit has noted that wiretapping "'is particularly appropriate when the telephone is routinely relied on to conduct the criminal enterprise under investigation.'" United States v. Fleishman, No. 11 Cr. 32(JSR), 2011 WL 4000987, at *3 (S.D.N.Y. Aug. 31, 2011) (quoting United States v. Steinberg, 525 F.2d 1126, 1131 (2d Cir. 1975) (). Where there is a conspiracy at work, the need for a wiretap may be compelling: "the clandestine nature of alleged conspiracies makes them relatively less susceptible to normal investigative techniques." United States v. Feola, 651 F. Supp. 1068, 1105 (S.D.N.Y. 1987), aff'd, 875 F.2d 857 (2d Cir. 1989).
Defendants bear the burden of proving that wiretap applications were in some manner deficient. United States v. Fea, No. 10 Cr. 708(PKC), 2011 WL 1346981, at *4 (S.D.N.Y. Apr. 5, 2011) (citing United States v. Magaddino, 496 F.2d 455, 459-60 (2d Cir. 1974) ().
Mirzoyan argues that the wiretap evidence must be suppressed because the communications the Government sought authorization to intercept were not made in theSouthern District of New York. According to Mirzoyan, Southern District judges thus lacked the jurisdiction to issue the wiretap orders. Mirzoyan contends that "Congress intended . . . jurisdiction for issuance of an interception order [to] be limited to phones located within the issuing court's jurisdiction at the time of the application. . . ." (Def. Br. (Dkt. No. 361) at 12; Def. Br. (Dkt. No. 361) 8-14).
Under Section 2518(3), a "judge may enter an ex parte order . . . authorizing or approving interception of wire, oral, or electronic communications within the territorial jurisdiction of the court in which the judge is sitting (and outside that jurisdiction but within the U.S. in the case of a mobile interception device authorized by a Federal court within such jurisdiction)." 18 U.S.C. § 2518(3). "Intercept" is defined as "the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device." 18 U.S.C. § 2510(4).
In interpreting this statutory definition, the Second Circuit has held that "a communication is intercepted not only where the tapped telephone is located, but also where the contents of the redirected communication are first to be heard." United States v. Rodriguez, 968 F.2d 130, 136 (2d Cir. 1992). Accordingly, a "federal court sitting in the jurisdiction in which the to-be-tapped telephone is located would have the authority, under § 2518(3), to authorize a wiretap[on that telephone]," and a district judge sitting in the jurisdiction where "the redirected contents are first heard" likewise has authority to authorize the interception of those communications. Rodriguez, 968 F.2d at 136; United States v. Bernardino, No. 07 Cr. 151(PKC), 2007 WL 4462176, at *3 (S.D.N.Y. Dec. 17, 2007).
Here, district judges sitting in the Southern District of New York authorized the wiretaps at issue. (Gov't Br. at 2 n.3, 4 n.6, 5 n.7 and 10 n.9) Each wiretap applicationsubmitted by the Government represented to the issuing judge that intercepted communications would in all instances be first heard by agents located in this District. See, e.g., 9/2/09 Terdjanian Application at 022462; 11/3/09 Mirzoyan Application at 020298; 6/28/10 Yepiskopyan Application at 022912. There is no allegation that the Government varied from this representation in practice. Therefore, under Rodriguez, the jurisdictional requirement of Section 2518(3) is satisfied because the intercepted calls were "first heard" in the Southern District of New York.
Mirzoyan argues that Rodriguez can be distinguished because here there are no "factual underpinnings" connecting the wiretaps applications to New York. (Def. Br. (Dkt. No. 274) at 19) Mirzoyan's attempts to distinguish Rodriguez are unavailing. There is no indication in that case that its holding depends on such "factual underpinnings." See Rodriguez, 968 F.2d at 136. Instead, the Rodriguez court's holding concerning the meaning of "intercept" turns on its analysis of the text, legislative history, and policy considerations underlying 18 U.S.C § 2510(4) and Title III more generally. See id. at 135-36. The Rodriguez court anticipated cases in which the Government would "seek [as here] to tap telephones in more than one jurisdiction and to monitor them in a single jurisdiction," and...
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