United States v. Reyna
| Docket Number | 18 CR 232-7 |
| Decision Date | 01 May 2023 |
| Parties | UNITED STATES OF AMERICA v. JONATHAN REYNA |
| Court | U.S. District Court — Northern District of Illinois |
Defendant Jonathan Reyna, who has been indicted for crimes related to a narcotics trafficking conspiracy, moves to suppress evidence gathered as a result of a wiretap that the then-Chief Judge authorized in 2018 under 18 U.S.C. § 2518(10)(a) [862]. Reyna argues that the court abused its discretion by granting the government's application to intercept his communications because, in that application, law enforcement failed to demonstrate necessity for a wiretap as required by 18 U.S.C. § 2518(10)(c). For the reasons discussed below, Reyna's motion to suppress is denied.
On February 12, 2018, then-Chief Judge Ruben Castillo of this court authorized a wiretap under 18 U.S.C. § 2518 for three cell phones, including Target Phone 7, which at times was used by Defendant Jonathan Reyna. To support its application to intercept communications on Target Phones 6 7, and 8, the government submitted a 107-page affidavit written by Jacob Cowan, a Special Agent with the Federal Bureau of Investigation who personally participated in the investigation of Reyna and his co-conspirators. In his affidavit, Agent Cowan describes the steps law enforcement officers took and the evidence they obtained during a nearly eight-month investigation into a narcotics trafficking conspiracy on Chicago's west side. The wiretap portion of the investigation began when law enforcement officers intercepted communications to and from phones used by co-defendant Devontay Johnson, from whom undercover law enforcement officers had purchased heroin and MDMA pills on several occasions. (Id. ¶ 18-19.) From those calls and physical surveillance, agents identified co-defendant Corey Benson as one of Johnson's narcotics suppliers. (Id. ¶ 19.) The government then obtained authorization to intercept communications to and from a phone that Benson used. (Id. ¶ 20.) Law enforcement officers then used information they learned from Benson's intercepted calls and physical surveillance to work their way further up the narcotics distribution chain, which led them to identifying Defendant Reyna as one of Benson's narcotics suppliers. (Id.)
The affidavit asserts that intercepting wire communications over Target Phone 7 was necessary to fulfill the investigation's overall objectives (id. ¶ 133), which included (1) identifying Reyna's sources of narcotics supply, (2) identifying locations that Reyna and others used to receive, store, and process bulk quantities of narcotics and narcotics proceeds; and (3) dismantling the overall drug trafficking organization that Reyna and others operated. (Id. ¶ 132.)
The affidavit describes a number of investigative techniques that law enforcement employed up to the date of its application. It explains how, with the benefit of prior wiretaps, law enforcement was able to conduct physical surveillance of Reyna and others. For example, officers identified Reyna as the user of Target Phone 7 in part based on officers' observations of Reyna talking on his phone while law enforcement simultaneously intercepted a telephone call between Benson and the until-then-unidentified user of Target Phone 7. (Aff. at p. 55 n.21.)
The affidavit also includes information that agents learned from physical surveillance of Reyna, including, for example, information identifying one of his vehicles. (Aff. ¶ 156.) As Agent Cowan's affidavit explained, law enforcement's ability to physically surveil suspects during the investigation proved difficult because Reyna and his co-conspirators constantly monitored their surroundings for the presence of law enforcement. (Id. ¶¶ 136-37.) Additionally, the affidavit noted, traditional investigative techniques like physical surveillance and mobile tracking were of limited use because such techniques did not reveal the identity of person(s) any individual was meeting with, the nature of the meeting, or transactions that occurred during such a meeting. (Id. ¶ 158.)
In addition to recounting officers' physical surveillance efforts, the affidavit discusses additional investigative techniques law enforcement employed prior to the wiretap application, including the use of undercover agents (Aff. ¶ 139), a confidential source (id. ¶ 140), pole cameras (id. ¶¶ 165-66), pen registers (id. ¶ 127), mobile tracking devices (id. ¶ 155), and mail cover requests (id. ¶¶ 160-61). It also discusses the investigative techniques that law enforcement considered but chose not to use against Reyna due to safety or practicality concerns, including grand jury subpoenas (id. ¶ 143), consensual interviews (id. ¶ 144-46), search warrants or consensual searches (id. ¶ 147-51), and trash seizures (id. ¶ 159).
“Title III of the Omnibus Crime Control and Safe Streets Act of 1968 established a comprehensive statutory regime by which the Government may intercept wire, oral or electronic communications.” United States v. Martin, 618 F.3d 705, 714 (7th Cir. 2010) (citations omitted). “Before using a wiretap to gather evidence of crimes, the government must apply for court authorization and its application must meet certain statutory requirements.” United States v. Mandell, 833 F.3d 816, 820 (7th Cir. 2016) (citing 18 U.S.C. §§ 2516, 2518(1)). The government should strictly adhere to these requirements, see United States v. Chavez, 416 U.S. 562, 580 (1974), the purpose of which is to ensure that wiretapping is not “routinely employed as the initial step in criminal investigation." United States v. Giordano, 416 U.S. 505, 515 (1974).
One of the statute's procedural requirements is that the government demonstrate the “necessity” of a wiretap. The law enforcement officer's application must include a “full and complete statement as to whether or not investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous.” 18 U.S.C. § 2518(1)(c). Despite the name, absolute necessity-in the sense that the investigation cannot proceed without a wiretap-is not required: the requirement “was not intended to ensure that wiretaps are used only as a last resort in an investigation, but rather that they are not to be routinely employed as the initial step in a criminal investigation.” United States v. McLee, 436 F.3d 751, 763 (7th Cir. 2006) (emphasis in original) (citations and internal quotation marks omitted). “The government's burden of establishing that normal methods have not worked or are unlikely to work or would be too dangerous is not great, and we consider its supporting evidence in a practical and common-sense fashion.” United States v. Jones, 56 F.4th 455, 473 (7th Cir. 2022) (quotation marks omitted), cert. denied sub nom. Owens v. United States, No. 22-6945, 2023 WL 2959482 (U.S. Apr. 17, 2023).
In determining whether to suppress Title III evidence, the court reviews the decision to grant the wiretap application for an abuse of discretion. United States v. Maggard, 865 F.3d 960, 967 (7th Cir. 2017). In so doing, the court gives “great deference” to the issuing judge's determination. McLee, 436 F.3d at 763. So long as the statements in the application on which the judge relied are supported by factual predicates, the judge's determination will not be disturbed. Maggard, 865 F.3d at 968. The court will, however, suppress evidence derived from intercepted conversations if the issuing court abused its discretion in granting the application. United States v. Matthews, 213 F.3d 966, 968-69 (7th Cir. 2000) (“Title III provides that intercepted communications may be suppressed if: (i) the communication was unlawfully intercepted; (ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or (iii) the interception was not made in conformity with the order of authorization or approval.”) (citing 18 U.S.C. § 2518(10)).
Mr Reyna's motion is primarily premised on one argument: that suppression is required due to the government's alleged failure to explain how it exhausted traditional investigative techniques against Reyna specifically. (See Mot. to Suppress Title III Evidence (“Reyna Br.”) [862] at 6-7, 15; Jonathan Reyna's Reply in Supp. of his Mot. to Suppress Title III Evidence (“Reyna Reply”) [867] at 1-5.) Reyna urges that the necessity requirement is determined on a person-specific basis. In support, he cites three cases. The first, an unreported 2006 opinion from a federal district judge in Kentucky, states that the protections of § 2518 “are directed at individuals, not groups; therefore, the Court must examine the investigations of those individuals.” United States v. Rice, No. 3:04CR-83-R, slip op. at 2 (W.D. Ky. Jan. 17, 2006). The Rice court does not support that observation with language from the statutory text or other analysis, however. And the other cases Reyna cites to support his proposed standard are also not controlling. In United States v. Carneiro, 861 F.2d 1171, 1177 (9th Cir. 1987), the Ninth Circuit reversed in part a district court's denial of a suppression motion because the lower court did not adequately assess whether each individual wiretap application in a set independently satisfied the necessity requirement. The court was concerned by “material omissions and misstatements” in some of the wiretap applications, and cited Ninth Circuit authorities for the statement that “there must be a showing of necessity with respect to each telephone and conspirator.”...
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