US v. Castillo-Garcia
| Decision Date | 25 March 1996 |
| Docket Number | Criminal A. No. 94-CR-371-N. |
| Citation | 920 F. Supp. 1537 |
| Parties | UNITED STATES of America, Plaintiff, v. Ceferino CASTILLO-GARCIA, Jaime Olivas-Sanchez, Jesus Saul Bujanda-Ibarra, Ismael Armendariz-Amaya, Jeffrey Samuel Pino, Victor Julio Avila, Jr., Anita Pino, Ray Gutierrez, Larry Pino, Doug Tierney, John Sheridan, Apolonio Portillo-Rodriguez, Alonso Moreno, Matt Hilton, Thomas McCulloch, Alberto Avila, Jack Girard, and Joanne Ayers, Defendants. |
| Court | U.S. District Court — District of Colorado |
COPYRIGHT MATERIAL OMITTED
David M. Gaouette, Assistant U.S. Attorney, Denver, CO, for U.S.
Felix Garcia, Denver, CO, for Jaime Olivas-Sanchez.
Virginia L. Grady, Assistant Federal Public Defender, for Ismael Armendariz-Amaya.
Robert S. Berger, Denver, CO, for Anita Pino.
Richard J. Banta, Denver, CO, for Larry Pino.
Seth J. Benezra, Roman & Benezra, Denver, CO, for John Sheridan.
David J. Dansky, Chambers, Dansky and Hansen, Denver, CO, for Ceferino Castillo-Garcia.
Harvey A. Steinberg, Springer and Steinberg, P.C., Denver, CO, for Jesus Saul Bujanda-Ibarra.
Ronald A. Podboy, Denver, CO, for Jeffrey Samuel Pino.
James A. Castle, Denver, CO, for Ray Gutierrez.
Jeffrey E. Fossum, Denver, CO, for Doug Tierney.
Arthur S. Nieto, Denver, CO, for Alonso Moreno.
David C. Japha, Denver, CO, for Matt Hilton.
Elisa J. Moran, Denver, CO, for Alberto Avila.
Christopher C. Cross, Cross & Heckenbach, P.C., Englewood, CO, for Joanne Ayers.
Richard N. Stuckey, Denver, CO, for Thomas McCulloch.
Kerry S. Hada, Englewood, CO, for Jack Girard.
The indictment in this case charges eighteen1 named defendants in eight counts. The first two counts are separate, but overlapping, conspiracy charges ?€” one being a conspiracy to distribute (and possess with intent to distribute) cocaine and the other being a conspiracy to distribute (and possess with intent to distribute) marijuana ?€” all in violation of 21 U.S.C.A. ?? 841(a)(1) and 846 (West 1981 & Supp.1995). The next six counts are substantive drug charges, including possession of cocaine with intent to distribute it, attempted possession of marijuana with intent to distribute it, and use of the telephone to facilitate a drug transaction. The final two charges are a money laundering charge and a charge alleging that one defendant violated an immigration law prohibiting illegal re-entry into the United States by an alien who has previously been convicted of an aggravated felony.
The matter is before the court on numerous motions2 to suppress evidence obtained as a result of five separate wiretaps utilized by the Government during the underlying investigation of this case. The court held a hearing and took evidence concerning defendants' motions to suppress. At the conclusion of the hearing, the court made oral findings and conclusions concerning most of the arguments raised by defendants. Two issues, however, were taken under advisement. The primary issue is whether the wiretap applications for any or all of the five wiretaps sufficiently complied with a statutory mandate that the applications contain "a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous" ?€” sometimes called the "necessity requirement." See 18 U.S.C.A. ? 2518(1)(c) (West 1970). A secondary issue taken under advisement is whether the Government conducted the wiretaps in such a way as to minimize the interception of communications not otherwise subject to interception ?€” the "minimization requirement." See 18 U.S.C.A. ? 2518(5) (West Supp.1995). The following recitation constitutes the court's findings of fact and conclusions of law on these two issues.
According to affidavits which he submitted in support of the five wiretap applications, Denver Police Detective Stephen F. Barnhill (working as a special federal officer "deputized" by the Federal Bureau of Investigation) began participating in the investigation underlying the present indictment in July 1994. On July 1, 1994, Detective Barnhill arrested a person possessing one-and-one-quarter kilograms of cocaine. That person, identified throughout the record only as "CW Cooperating Witness-1," immediately identified his supplier as one Rosario Portillo-Rodriguez and offered to cooperate in an investigation of the supplier. CW-1 claimed to have purchased approximately twenty-two kilograms of cocaine from Rosario Portillo-Rodriguez between June 1993 and July 1, 1994. He also disclosed details about Rosario Portillo-Rodriguez's cocaine distribution network, many of which were confirmed over the next month as the investigation proceeded.
Immediately after his arrest, CW-1 began assisting Detective Barnhill and others in gathering evidence about Rosario Portillo-Rodriguez's operation. Between July 1, 1994, and August 4, 1994, CW-1 met frequently with Rosario Portillo-Rodriguez to negotiate CW-1's purchase of cocaine on consignment. CW-1 also placed calls to, and/or received calls from, a telephone and a cellular telephone which Rosario Portillo-Rodriguez used in his cocaine distribution operation. Nearly all of these conversations were monitored and recorded. Law enforcement agents observed the meetings when it was possible to do so, and on four occasions Rosario Portillo-Rodriguez delivered multi-ounce quantities of cocaine to CW-1 as the officers watched and/or listened.
The monitored conversations with Rosario Portillo-Rodriguez and the surveillance conducted by law enforcement officers disclosed that Rosario Portillo-Rodriguez periodically received multi-kilogram shipments of cocaine from a source in the area of El Paso, Texas or Juarez, Mexico. The cocaine was delivered to and stored at 4331 Raritan Street in Denver, a couple of blocks from Rosario Portillo-Rodriguez's residence at 4500 Raritan Street. It was then re-packaged and distributed from the detached garage associated with the residence at 4331 Raritan Street. Baudelio Portillo-Rodriguez and Joe? Portillo-Rodriguez, Rosario's brothers and fugitives on cocaine distribution charges pending in this court, apparently lived at 4331 Raritan Street.3 Other persons, some unknown and others known to the observing officers from previous drug arrests, came and went from 4331 Raritan Street. They appeared to be delivering cocaine to the residence or picking up cocaine for further distribution.
CW-1 had never been introduced to Rosario Portillo-Rodriguez's source of cocaine, although it is unclear whether he ever sought an introduction, either before or after he began cooperating with law enforcement officers. He also did not know other people who distributed cocaine for Rosario Portillo-Rodriguez's organization. It was clear, however, that Rosario Portillo-Rodriguez used his home telephone and cellular telephone to negotiate cocaine transactions and that he frequently forwarded calls from both telephones to his pager. Detective Barnhill thus applied for the first wiretap at issue, covering Rosario Portillo-Rodriguez's home telephone, cellular telephone, and pager.
The five wiretaps in question intercepted communications on five separate telephones, one cellular telephone (Rosario Portillo-Rodriguez's), and three digital pagers. The telephones were located at seven distinct, geographically-separate locations. Telephone records indicated that the telephones were subscribed (sometimes jointly) in the names of nine persons, only two of whom were eventually indicted in this case. Specifically, the telephone numbers, locations, and subscribers are as follows:
(1) First Wiretap: 94-WT-4 (issued August 19, 1994)
This first wiretap order intercepted communications from: (1) telephone number (303) 480-1955, subscribed to Veronica L. Portillo, 4500 Raritan Street, Denver, Colorado; (2) cellular telephone (303) 877-2046, subscribed to Veronica Portillo; and (3) digital display paging device (303) 852-2771, subscribed to Veronica Portillo and Rosario Portillo-Rodriguez, doing business as P & R Concrete hereinafter collectively referred to as the "First Wiretap". The suspects named in the First Wiretap were: Rosario Portillo-Rodriguez; Jos? Portillo-Rodriguez; Baudelio Portillo-Rodriguez; Defendant Apolonio Portillo-Rodriguez; and James Scott Sedgley. The First Wiretap terminated September 17, 1994.
(2) Second Wiretap: 94-WT-7 (issued September 22, 1994; extended on October 21, 1994)
The second wiretap order, issued five days after termination of the First Wiretap, intercepted communications from telephone numbers (303) 431-4345, subscribed to Fidela Armendariz, 6550 Benton Street, Arvada, Colorado, and (303) 292-1131, subscribed to Defendant Anita Pino, 5138 Milwaukee Street, Denver, Colorado hereinafter collectively referred to as the "Second Wiretap". The suspects named in the Second Wiretap were: Rosario Portillo-Rodriguez; Defendant Ceferino Castillo-Garcia; and Defendant Ismael Armendariz-Amaya. The wiretap on (303) 431-4345 terminated September 27, 1994. An extension was granted with respect to the wiretap on (303) 292-1131. The extension added Defendant Jeffrey Samuel Pino, Defendant Anita Pino, Defendant Jesus Saul Bujanda-Ibarra, and "Andy" (last name unknown) to the list of suspects, and it terminated October 24, 1994.
(3) Third Wiretap: 94-WT-8 (issued September 22, 1994)
The third wiretap order, issued five days after termination of the First Wiretap and contemporaneously with the Second Wiretap, intercepted communications from digital display paging devices (303) 251-1594, subscribed to Ruben Martinez, 3549 Shoshone Street, Denver, Colorado, and (303) 609-1931, subscribed to Raul Ferrnandez, 380 Bannock, apartment number 1865, Denver, Colorado hereinafter collectively referred to as the "Third Wiretap". The...
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