United States v. Kazarian, 10 Cr. 895 (PGG)

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtPaul G. Gardephe
Docket Number10 Cr. 895 (PGG)
Decision Date18 May 2012

ARMEN KAZARIAN et al., Defendants.

10 Cr. 895 (PGG)


Dated: May 18, 2012



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:

1. motions to suppress evidence obtained over court-authorized wiretaps (Dkt. Nos. 333, 336, 339);
2. motions to suppress evidence obtained through various physical searches; (Dkt. Nos. 342, 345, 348, 351, 354);
3. a motion to dismiss Counts Two through Six of the Indictment as multiplicitous (Dkt. No. 379);
4. a motion to dismiss the Indictment on the grounds that it does not provide sufficient notice (Dkt. No. 379);
5. a motion for a bill of particulars (Dkt. No. 327); and
6. a motion for severance based on alleged improper joinder of counts and parties (Dkt. No. 324).

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, and

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post-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.

A. Applicable Law

1. Standing

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))

2. Statutory Requirements for Authorizing Wiretap

In order to authorize the interception of oral communications under Title III, a court must determine that

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(a) there is probable cause for belief that an individual is committing, has committed, or is about to commit a [crime enumerated in 18 U.S.C. § 2516];
(b) there is probable cause for belief that particular communications concerning that offense will be obtained through such interception;
(c) normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous; [and]
(d) . . . there is probable cause for belief that the facilities from which, or the place where, the wire, oral, or electronic communications are to be intercepted are being used, or are about to be used, in connection with the commission of such offense. . . .

18 U.S.C. § 2518(3).

The statutory requirement that normal investigative techniques be addressed in wiretap applications "'is simply designed to assure that wiretapping is not resorted to in situations where traditional investigative techniques would suffice to expose the crime.'" United States v. Serrano, 450 F.Supp.2d , 236 (S.D.N.Y. 2006) (quoting United States v. Kahn, 415 U.S. 143, 153 n.12 (1974). The legislative history accompanying Section 2518 indicates that "normal investigative techniques includes,

for example, standard visual or aural surveillance techniques by law enforcement officers, general questioning or interrogation under an immunity grant, use of regular search warrants, and the infiltration of conspiratorial groups by undercover agents or informants.

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 and

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progress 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) ("[T]he very scope of the operations described in the affidavit made it highly likely that numerous narcotics-related communications would take place in the future."). 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) ("the 'burden is, of course, on the accused in the first instance to prove to the trial court's satisfaction that wire-tapping was unlawfully employed'").

B. Analysis

1. Jurisdiction

Mirzoyan argues that the wiretap evidence must be suppressed because the communications the Government sought authorization to intercept were not made in the

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Southern 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 application

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submitted 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...

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