United States v. Rodriguez, Crim. No. 84-407-C.

• Decision Date: 10 April 1985
• Docket Number: Crim. No. 84-407-C.
• Citation: 606 F. Supp. 1363
• Parties: UNITED STATES of America, Plaintiff, v. Elmer E. RODRIGUEZ a/k/a "Edgar", Helmer Mosquera, Milton Calderon, Felix Rengifo, Francis Scala a/k/a "Frankie" a/k/a "Frank", Leslie K. Grover, Harvey Brand a/k/a Harvey Arias, Patrick J. Scala a/k/a "Jay", James Malacaria, Rodney A. King, Javier Brand a/k/a Javier Arias, and Nelson Rodriguez, Defendants.
• Court: U.S. District Court — District of Massachusetts

606 F. Supp. 1363

UNITED STATES of America, Plaintiff, v. Elmer E. RODRIGUEZ a/k/a "Edgar", Helmer Mosquera, Milton Calderon, Felix Rengifo, Francis Scala a/k/a "Frankie" a/k/a "Frank", Leslie K. Grover, Harvey Brand a/k/a Harvey Arias, Patrick J. Scala a/k/a "Jay", James Malacaria, Rodney A. King, Javier Brand a/k/a Javier Arias, and Nelson Rodriguez, Defendants.

Crim. No. 84-407-C.

United States District Court, D. Massachusetts.

April 10, 1985.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Oliver C. Mitchell, Jr., U.S. Atty., for U.S.

Richard Gargiulo, Boston, Mass., for defendant Elmer Rodriguez.

Richard Gargiulo, Brian J. McMenimen, Gargiulo & McMenimen, Boston, Mass., for defendant Mosquera.

W.H. Underhill, Jr., Boston, Mass., for defendant Calderon.

James Michael Merberg, Law Offices of F. Lee Bailey, Boston, Mass., for defendant Rengifo.

Cornelius H. Kane, Boston, Mass., for defendant Francis Scala.

William F. York, Boston, Mass., for defendant Grover.

Judd Carhart, Carhart, Bonistalli & McCarthy, Boston, Mass., for defendant Harvey Brand.

Kevin J. O'Dea, Boston, Mass., for defendant Patrick Scala.

Paul W. Losordo, Quincy, Mass., for defendant Malacaria.

Kevin Glynn, Boston, Mass., for defendant King.

Edward Gargiulo, Boston, Mass., for defendant Javier Brand.

Thomas F. Heffernon, Salon, Heffernon & Shub, Boston, Mass., for defendant Nelson Rodriguez.

MEMORANDUM

CAFFREY, Chief Judge.

This is a criminal case in which twelve defendants are accused of conspiracy to possess cocaine with intent to distribute and related offenses in a fifteen count indictment. The defendants have filed a multitude of motions to suppress evidence which motions may be broken down into three categories: evidence obtained through electronic surveillance, evidence seized pursuant to search warrants, and post-arrest statements. All of the motions are presently before the Court.

ELECTRONIC SURVEILLANCE EVIDENCE

Defendants E. Rodriguez, Mosquera, Calderon Grover, H. Brand, P. Scala, Malacaria, King, J. Brand, N. Rodriguez

The above-named defendants have moved to suppress evidence obtained through electronic surveillance of communications made to and from a telephone numbered (617) 277-8290, and subscribed to by defendant Elmer Rodriguez. The Honorable David S. Nelson of this Court authorized such interceptions pursuant to 18 U.S.C. § 2518.

The first application for an order authorizing interception of wire communication was filed on October 2, 1984. A seventy-one paragraph affidavit by Special Agent John J. Hampe, Jr. of the Drug Enforcement Administration ("DEA") was also submitted in support of the application. The substance of the relevant facts recited in the affidavit is as follows.

Hampe, an 18-year DEA veteran and Massachusetts state and local police were engaged in a joint investigation with which had focused on unlawful cocaine distribution activities involving several of the present defendants. During the course of the investigation several confidential informants ("CI") provided information as to the existence and structure of the cocaine distribution network. One of these informants has described Elmer Rodriguez as a seller of cocaine who transacts business over the telephone. Another CI has purchased cocaine from Rodriguez on two occasions under law enforcement surveillance. Both transactions were arranged by telephoning Rodriguez at (617) 277-8290. Visual surveillance of the Rodriguez residence revealed that Rodriguez left the house shortly after each call, went to a second location, then proceeded to the rendezvous to complete the sale. Two additional informants gave information as to Elmer Rodriguez' extensive involvement with cocaine distribution in the area, and also named several other participants.

The investigating officials attempted to use conventional methods to further the investigation. A DEA agent attempted to purchase cocaine from Elmer Rodriguez by telephoning (617)277-8290 on two occasions but this was unsuccessful. A Court authorized pen register was used to record telephone numbers dialed from Rodriguez' phone, but this, of course, did not identify the persons engaged in the conversation or its subject matter.

The affidavit recites a number of reasons why normal investigative techniques would be unlikely to yield further results. Elmer Rodriguez was known to keep the bulk of his cocaine at locations other than his home, and to make arrangements for pickup and delivery via telephone. Furthermore, an informant reported that Rodriguez would not sell cocaine to persons he did not know or trust. The informants refused to testify against Rodriguez even when offered relocation under the Witness Protection Program. Offers of immunity from prosecution were unlikely to succeed because several participants in the alleged conspiracy were related. Furthermore, those members of the organization trusted by Rodriguez appeared to be as culpable as he, and therefore inappropriate persons for a grant of immunity. Finally, the use of conventional search warrants would not identify all locations used by Rodriguez and his associates to store cocaine or identify all members of the group. The affiant concluded that, based on his experience, the interception of wire communications was "the only method of investigation likely to provide the quality and amount of evidence necessary to prosecute Rodriguez and his associates...."

The application for an order authorizing electronic surveillance was granted on October 2, 1984, and a 30-day order issued the same day. The intercepts began immediately and continued throughout October. Later in the month the Government made application for a second order authorizing interceptions beginning on October 31 and continuing for 30 days. The affidavit accompanying that application was again provided by Agent Hampe, and contains transcripts of previously intercepted conversations during which drug transactions were discussed. This affidavit recites that visual surveillance had become even less feasable because of the defendants' heightened concern about police activity. Hampe also describes in greater detail Rodriguez' complex movements which made it very unlikely that conventional methods would discover where his cocaine was stored, his source, and how he disposed of his sale proceeds.

The defendants move to suppress evidence obtained through the interception of communications on the Rodriguez phone on several grounds. They claim that the statute pursuant to which the wiretaps were authorized, 18 U.S.C. § 2518, is unconstitutional; that the affidavit is insufficient to satisfy the requirements of 18 U.S.C. § 2518(10)(a) and the Fourth Amendment; that the orders authorizing the intercept are improper and insufficient, that the interceptions were not made in accordance with the order of authorization; that the interceptions were not properly minimized, and that inventories were not served upon the defendants within 90 days as required by 18 U.S.C. § 2518(8)(d).

Several of these contentions may be dealt with summarily. To begin with, the statute has survived numerous constitutional challenges. See United States v. Southard, 700 F.2d 1, 27 (1st Cir.1983), cert. denied, ___ U.S. ___, 104 S.Ct. 89, 78 L.Ed.2d 97 (1984) and cases cited therein at n. 35. It is unnecessary to belabor that issue at this juncture. As to defendants' other contentions, I find and rule that the affidavits show that there was probable cause to believe that named and unnamed individuals had committed and were committing offenses enumerated in 18 U.S.C. § 2516; that there was probable cause to believe that particular communications concerning these offenses could and would be obtained through the interception; and that the telephone to be intercepted is listed in the name of Elmer Rodriguez. Additionally, I find and rule that the surveillance orders issued meet the requirements of 18 U.S.C. § 2518(4) in describing the identities of persons and location of communications to be intercepted as well as the identity of the agencies authorized to make these interceptions and the period of time during which the interceptions are authorized. I further find that inventories of the intercept were served upon each of the defendants in accordance with § 2518(8)(d).

There remain two grounds for suppression of the wiretap evidence which require more detailed attention: (1) that the affidavits fail to meet the requirement of § 2518(1)(c) by showing that normal investigative techniques have failed or appear to be unlikely to succeed, and (2) that the intercepts were not "conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter." 18 U.S.C. § 2518(5).

On the first theory, defendants contend that wiretap surveillance is permissible only as a "last resort" where more traditional and less intrusive techniques have been tried unsuccessfully. The law of the First Circuit, as set forth in the seminal case of United States v. Scibelli, 549 F.2d 222 (1st Cir.), cert. denied, 431 U.S. 890, 97 S.Ct. 2687, 53 L.Ed.2d 278 (1977) does not support this interpretation of § 2518(1)(c). Quite to the contrary, it is clear that the statute does not require that the Government exhaust all other means before a wiretap order may issue. Id. at 226. Rather, the statute is designed to safeguard against wiretaps being "routinely employed as the initial step in a criminal investigation." United States v. Giordano, 416 U.S. 505, 515, 94 S.Ct. 1820, 1827, 40 L.Ed.2d 341 (1974).

Here, Agent Hampe's affidavit has painstakingly described law enforcement agent's unsuccessful efforts to penetrate the conspiracy by traditional means. He also gave reasons why further attempts were unlikely to succeed. By way of example, the affidavit recites that visual surveillance produced indicia of "suspicious activity" but not the competent evidence necessary for prosecution...