United States v. Silva-Rentas

• Decision Date: 23 January 2017
• Docket Number: Crim. No. 14-754-2 (DRD)
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. JOSE SILVA-RENTAS, Defendants.
• Court: U.S. District Court — District of Puerto Rico

UNITED STATES OF AMERICA, Plaintiff, v. JOSE SILVA-RENTAS¹, Defendants.

Crim. No. 14-754-2 (DRD)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

January 23, 2017

OPINION AND ORDER

I. INTRODUCTION

In 2011, the government was investigating a drug trafficking organization ("DTO") responsible for importing drugs from Vieques, an island off the coast of Puerto Rico, to the main island of Puerto Rico and the United States. On November 3, 2011, federal agents requested Court authorization to intercept cellular communications to and from a cellular phone belonging to Defendant Francisco Pimentel-Maldonado ("Pimentel-Maldonado"), an alleged member of the DTO, pursuant to a wiretap order governed by Title III of the Omnibus Crime Control and Safe Streets Act of 1968 ("Title III"), 18 U.S.C. §§2510-22. In the application's supporting affidavit, Drug Enforcement Agency ("DEA") agent Jose Rincones swore there was probable cause to believe Defendant Jose Silva-Rentas ("Silva-Rentas" or "Defendant"), a presumed associate of Pimentel-Maldonado, was committing drug trafficking and money laundering offenses in violation of 21 U.S.C. §841(a)(1), 21 U.S.C. §843(b), 21 U.S.C. §846, 18 U.S.C. §1956, and 18 U.S.C. §1957. See, e.g., 11-mc-462, Docket No. 7. The Court authorized the interception request that same day. See id., Docket No. 8. Between December 9, 2011 and March 14, 2012, the Court authorized three additional Title III interceptions targeting Pimentel-Maldonado and Silva-Rentas. See id., Docket Nos. 21,34, 37, and 59. Pending before the Court is Defendant's Motion to Suppress the evidence compiled by the government through those Title III intercepts (Docket No. 1090). For the reasons provided below, the Court hereby DENIES Defendant's Motion to Suppress.

II. PROCEDURAL BACKGROUND

On December 18, 2014, Silva-Rentas, Pimentel-Maldonado, and fifteen co-defendants were indicted and charged with drug trafficking and money laundering offenses. See 14-cr-754, Docket No. 3. Defendant Silva-Rentas was charged with conspiracy to import controlled substances into the United States, in violation of 21 U.S.C. §§ 952, 960, and 963; conspiracy to possess with intent to distribute controlled substances, in violation of 21 U.S.C. §§ 846 and 841(a)(1); conspiracy to possess firearms in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(o); and conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h). See id.

On October 11, 2016, Defendant Silva-Rentas filed a Motion to Suppress all evidence obtained through the Title III wiretaps. See id., Docket No. 1090. Defendant argues the Court's authorization of the wiretaps runs afoul of applicable law. Specifically, Defendant avers:

i) all four wiretap applications were devoid of probable cause that Defendant Silva-Rentas was committing, or was about to commit, a crime²;

ii) that the reasons provided for requesting the Title III intercepts were excessively broad;

iii) that the wiretap application lacked the requisite necessity because traditional investigative techniques had not been tried with Defendant;

iv) that the ten-day reports that were filed did not reflect a need for continued interception;

v) that Defendant is independently entitled to a Franks hearing on the issue that the government withheld information on the final wiretap application about a drug transaction being planned by members of the DTO and the government's confidential source;vi) that Defendant is entitled to a Franks hearing because the government improperly and maliciously omitted information regarding the cooperation of co-Defendant, and alleged leader of the DTO, Carlos Morales-Davila;

vii) that the government failed to minimize the interception of calls that were not pertinent to the investigation;

viii) that the affidavits attached to the authorization requests contained "stale" toll, pen register, and trap and trace analysis, as well as stale incriminating calls;

ix) that the government failed to file a ten-day report with respect to the December 9, 2011 wiretap authorization;

x) that the government employed unauthorized independent contractors and state agents in conducting their interceptions;

xi) that the government has unreasonably failed to comply with the requirement to provide an inventory of the recordings, as required by 18 U.S.C. §2518(8)(d);

xii) that the interception authorized on January 1, 2012 was later voided by the Court's amended order on that same date; and

On December 16, 2016, the government filed its opposition to Defendant's motion. See id., Docket No. 1206. The government countered Defendant's arguments by underlining several portions of the affidavits which supported the Court's determinations on probable cause and necessity prior to authorizing the intercepts. Further, the government averred that it took painstaking measures to avoid the interception of non-pertinent calls and text messages. Lastly, the government contested Defendant's averment that the failure to provide inventories was grounds for suppressing the evidence derived from the intercepts.

III. ANALYSIS

i. Title III

Through the enactment of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§2510-22, "Congress sought to protect the privacy of wire and oral communications while, at the same time, authorizing the use of electronic surveillance evidence obtained by law enforcement under specified conditions." United States v. Lopez, 300 F.3d 46, 51 (1st Cir. 2002)(citing Bartnicki v. Vopper, 532 U.S. 514, 523 (2001)). The interception, or "tapping," of electronic communications by the government is alast-resort measure which "is to be distinctly the exception—not the rule." United States v. Hoffman, 832 F.2d 1299, 1306 (1st Cir.1987). Once the requesting agency receives the Attorney General's approval for a Title III wiretap request, the agency's presenting officer must file a written application for a wiretap before a district judge. Before authorizing the wiretap, the court must make certain enumerated findings and issue an ex parte order establishing the parameters of the interception. See 18 U.S.C. § § 2516, 2518(1), (3)-(4).

Once a Title III wiretap has been authorized, the authorization is reviewable by the district court through a motion to suppress. See United States v. Ashley, 876 F.2d 1069, 1073 (1st Cir. 1989). The statute states:

Any aggrieved person in any trial, hearing, or proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, a State, or a political subdivision thereof, may move to suppress the contents of any wire or oral communication intercepted pursuant to this chapter, or evidence derived therefrom, on the grounds that—(i) the communication was unlawfully intercepted; (ii) the order or 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. 18 U.S.C. § 2518(10)(a).

The reviewing court must ensure the authorization requests and the authorization order comport with the statute's requirements. See, e.g., United States v. Giordano, 416 U.S. 505, 515 (1974). In doing so, the Court "must . . . take the facts as stated in the affidavit," Ashley, 876 F.2d at 1073-1074, and the Court must "determine the sufficiency of the affidavit on its face." Id.

ii. Necessity³

Defendant argues the government failed to demonstrate a necessity for the wiretap, as the statute requires. Defendant alleges the government had made such progress in its investigation that a wiretap was not necessary when requested. However, Defendant's position finds no footing in the law.

When requesting an intercept pursuant to Title III, the government must provide "a full and complete statement of the facts and circumstances justifying the applicant's belief that an order should be issued . . . [and] a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they appear to be too dangerous or unlikely to succeed if tried." § 2518(1)(b)-(c). This requirement is "designed to assure that wiretapping is not resorted to in situations where traditional investigative techniques would suffice to expose the crime." United States v. Rivera-Rosario, 300 F.3d 1, 18 (1st Cir. 2002)(quoting United States v. Kahn, 415 U.S. 143, 153 n. 12 (1974)).

The government must demonstrate that it 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." Hoffman, 832 F.2d at 1306-07; see also United States v. Edwards, 69 F.3d 419, 429 (10th Cir.1995) ("[L]aw enforcement officials are not required to exhaust all other conceivable investigative procedures before resorting to wiretapping."(citations and internal quotation marks omitted)). However, the government is not required to exhaust all investigative techniques. See United States v. David, 940 F.2d 722, 728-29 (1st Cir.1991) (holding the necessity requirement was satisfied without attempting to use search warrants, pen registers, or undercover agents); but see United States v. Castillo-García, 117 F.3d 1179, 1194 (10th Cir.1997) ("[G]eneralities, or statements in the conclusory language of the statute, are insufficient to support a wiretap application."). Nor does Title III require the government to "run outlandish risks ... before seeking a wiretap." Hoffman, 832 F.2d at 1306.

In reviewing a prior finding of necessity, the "'appeals court role is not to make a de novo determination of sufficiency as if it were [the issuing judge], but to decide if the facts set forth in the application were minimally adequate to support the determination that was made.'" Lopez, 300 F.3d at 52-53 (citing United States v. Ashley, 876 F.2d 1069, 1074 (1st Cir.1989)). The issuing court's determination is to be...