US v. Gerena

Decision Date07 July 1987
Docket NumberCrim. No. H-85-50 (TEC).
Citation667 F. Supp. 911
PartiesUNITED STATES of America v. Victor Manuel GERENA, et al.
CourtU.S. District Court — District of Connecticut

Albert S. Dabrowski, Carmen E. Van Kirk, John A. Danaher, III, Leonard C. Boyle, Asst. U.S. Attys., Stanley A. Twardy, Jr., U.S. Atty., David D. Buvinger, William J. Corcoran, Trial Attys., U.S. Dept. of Justice, Hartford, Conn., for plaintiff.

Juan R. Acevedo, Hartford, Conn., for Norman Ramirez Talavera.

James L. Sultan, Rankin & Sultan, Boston, Mass., for Ivonne Melendez Carrion.

Diane Polan, New Haven, Conn., for Elias Castro Ramos.

James Bergenn, Shipman & Goodwin, Hartford, Conn., for Carlos Ayes-Suarez.

Richard Reeve, Asst. Federal Public Defender, New Haven, Conn., for Isaac Camacho-Negron.

Linda Backiel, Philadelphia, Pa., for Antonio Camacho Negron.

Leonard I. Weinglass, New York City, for Juan E. Segarra-Palmer.

William M. Kunstler, Richard J. Harvey, New York City, for Filiberto Ojeda Rios.

Margaret P. Levy, Hartford, Conn., for Angel Diaz Ruiz.

Michael Deutsch, Chicago, Ill., for Orlando Gonzalez Claudio.

John Williams, New Haven, Conn., for Hilton Fernandez-Diamante.

Ronald L. Kuby, New York City, for Luis Colon Osorio.

Robert J. Maldonado-Rivera, Rio Piedras, P.R., pro se.

F. Mac Buckley, Buckley & Santos, Hartford, Conn., for Paul Weinberg.

Jacob Wieselman, Hartford, Conn., for Luz Berrios-Berrios.

Harold Meyerson, New York City, for Jorge Farinacci Garcia.


CLARIE, Senior District Judge.

On February 4, 1987, this Court ruled that "the law of the First Circuit governs with regard to the defendants' motions concerning the legality of the Government's electronic surveillance operations conducted in Massachusetts and Puerto Rico." Ruling, p. 15.1 The defendants have moved for reconsideration of this determination. The Court has carefully considered the defendants' arguments, but finds that there is no sound basis for the claim that the Court's ruling was in error.

The defendants also press for a clarification of the Court's decision, and specifically seek a determination that the ruling does not apply to certain categories of Title III claims, more particularly, those involving issues of sealing. The defendants' motion for clarification is granted. The Court herein elaborates on the findings in its earlier opinion. The Court concludes, however, that the defendants are not entitled to their request that post-interpection procedures be governed exclusively by the law of the forum, or that the forum apply its own exclusionary standards in the event of a finding that, under nonforum law, the evidence is tainted by illegality.


Following the October 30, 1983 rocket attack on the United States Courthouse and Federal Building at Hato Rey, Puerto Rico, federal law enforcement officials sought authorization to electronically monitor the conversations and activities of several of the defendants in this case. The Government sought authorization believing that the targeted individuals were involved in the attack. On April 27, 1984, Chief Judge Perez-Gimenez signed an order authorizing federal agents to electronically intercept oral and wire communications at three separate locations: 3384 Levittown Boulevard, Levittown, Puerto Rico; the three public telephones located across the street from the Levittown location; and apartment 11k, Condominium Los Frailes, located on Road # 833, at the intersection of Paz Granela, Guaynabo, Puerto Rico. Following these initial electronic interceptions, the Government expanded its surveillance activities to include other locations in Puerto Rico and elsewhere. As a result of these efforts, the Government gathered a large quantity of information about the defendants' criminal activities, and it is now the Government's claim, as set forth in the pending superceding criminal indictment, that each of the defendants participated in various illegal activities associated with the September 12, 1983 robbery of the Wells Fargo Depot in West Hartford, Connecticut.

Since the bank robbery occurred in Connecticut, the Government has chosen to prosecute the defendants in this jurisdiction. The surveillance operations themselves, however, (with one exception) were conducted at various locations within the jurisdiction of the First Circuit. The defendants have filed a number of motions challenging the legality of the Government's surveillance activities on several grounds. Specifically, they challenge, among other things, 1) the applications submitted by the Government to obtain authorization for the surveillance, 2) the procedures used by the supervising court in reviewing the surveillance requests, 3) the Government's methods of conducting the surveillance, and 4) the Government's methods of handling and preserving various items of evidence obtained in the course of the surveillance.

The defendants claim that the issues they have raised are governed by the precedent law of the Second Circuit, since Connecticut is the forum jurisdiction in which the trial is scheduled to take place. The Government, on the other hand, argues that the law of the First Circuit should control, since the electronic surveillance at issue occurred in Puerto Rico and Massachusetts under the supervision of the federal courts located there. The Court adheres to its prior finding that questions relating to electronic surveillance operations conducted within the First Circuit and supervised by its courts are governed by the laws of that jurisdiction. The Court reaffirms its previous ruling that if it should find that any material difference exists between the case law of the First Circuit and the case law of the Second Circuit with regard to the Title III issues raised, the Court will defer to First Circuit law.


The precise choice-of-law issue raised here has not been ruled upon in this or any other circuit. Nevertheless, general language from the Court of Appeals for this circuit suggests that the governing law should be that of the place where the electronic surveillance occurred. United States v. Romano, 706 F.2d 370, 376 (2d Cir.1983); United States v. Cotroni, 527 F.2d 708, 711 (2d Cir.1975), cert. denied, 426 U.S. 906, 96 S.Ct. 2226, 48 L.Ed.2d 830 (1976). The only relevant First Circuit decision adopts the same position, stating that "the law that controls the legality of an interception is the law of the place wherein the interception takes place." United States v. Bennett, 538 F.Supp. 1045, 1047 (D.Puerto Rico 1982) (emphasis in original). See United States v. Tirinkian, 502 F.Supp. 620, 627 (D.N.Dakota 1980), affd. United States v. Wentz, 686 F.2d 653 (8th Cir.1982) (the law of the point of interception governs the legality of the surveillance). But while these cases might appear to settle the question raised by the Government, a review of the facts of each demonstrates that they do not address the precise issue raised in the present controversy. Each involves the interception of international communications and a choice between the application of U.S. or foreign law in determining the legality of the surveillance. None discuss the precise issue of whether to apply the law of the forum jurisdiction over the law of the jurisdiction where the surveillance occurred when the two are different circuits within the United States. Accordingly, the lack of direct precedent renders this a case of first impression. Nevertheless, having carefully considered the fundamental policies embodied in the provisions of Title III; the realities of electronic surveillance litigation; the applicability of choice of law principles and their ability to shed some light on the present dilemma; and the relative benefits and disadvantages of various available alternatives, the Court finds that the lex loci approach applied in United States v. Romano, 706 F.2d at 376; United States v. Cotroni, 527 F.2d at 711; and United States v. Bennett, 538 F.Supp. at 1047, has application here, and furthermore, that it is the most logical and legally appropriate choice.

The defendants' objections to the Court's selection of the lex loci standard may be logically divided into three categories. First, the defendants deny that any legitimate conflict of law exists. They make several legally distinct arguments in support of this position, namely that (a) intercircuit disagreements are not properly subject to choice of law analysis; (b) the Court is not free to apply the law of another circuit where its own court of appeals has already spoken on the issue; (c) the Court lacks jurisdiction to apply the law of another circuit in this instance; and, implicitly, (d) the Court has no authority to adopt conflicts rules in criminal matters.

Second, the defendants claim that even if a conflict exists, the proper selection of applicable law is always that of the forum. In support of this claim the defendants argue that (a) in criminal matters, the forum always applies its own law; (b) in applying the law of the First Circuit, renvoi principles would direct the Court's choice back to the law of the forum;2 and (c) that in undertaking an interest analysis approach, the interests at stake mitigate in favor of applying the law of the forum.

Third, the defendants argue that, even if nonforum law is selected for some issues, it cannot be selected for post-interception issues, and that with such challenges, the law of the forum always applies. In support of this claim the defendants argue that (a) post-interception issues, such as that of sealing, speak to the admissibility of evidence and that as such they are subject only to the law of the forum; and (b) the choice of a proper suppression remedy is exclusively a matter to be resolved under the laws of the forum and,...

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