US v. Nunez

• Decision Date: 28 April 1987
• Docket Number: No. 86-CR-155.,86-CR-155.
• Parties: UNITED STATES of America, Plaintiff, v. Juan NUNEZ, Corky Nunez, Anna Irene Martinez, Richard Nunez, Charles Nunez, Ellen Nunez, Andrew Torres, Christine Benavidez, and, Cristobal Ramirez, Defendants.
• Court: U.S. District Court — District of Colorado

658 F. Supp. 828

UNITED STATES of America, Plaintiff, v. Juan NUNEZ, Corky Nunez, Anna Irene Martinez, Richard Nunez, Charles Nunez, Ellen Nunez, Andrew Torres, Christine Benavidez, and, Cristobal Ramirez, Defendants.

No. 86-CR-155.

United States District Court, D. Colorado,

April 28, 1987.

COPYRIGHT MATERIAL OMITTED

William Welch, Asst. U.S. Atty., Denver, Colo., for plaintiff.

Neil D. O'Toole, Denver, Colo., for Juan Nunez.

Arthur S. Nieto, Denver, Colo., for Corky Nunez.

Sander N. Karp, Denver, Colo., for Anna Irene Martinez.

Peter L. Edwards, Englewood, Colo., for Richard Nunez.

Harvey Steinberg, Denver, Colo., for Charles Nunez.

Marc P. Mishkin, Denver, Colo., for Ellen Nunez.

Richard Stuckey, Denver, Colo., for Andrew Torres.

Nina A. Iwashko, Denver, Colo., for Christine Benavidez.

Thomas P. Johnson, Denver, Colo., for Cristobal Ramirez.

ORDER ON PENDING MOTIONS

KANE, District Judge.

I. INTRODUCTION

Defendants have been indicted for allegedly violating, inter alia, Title 21 U.S.C. §§ 841(a)(1) and 846 by conspiring to possess and distribute heroin into the Department of Corrections of the State of Colorado. Several of the defendants have also been indicted for using the telephone and mail service in furtherance of the said conspiracy. The thirty-three count Superseding Indictment charges twenty defendants with being involved in the conspiracy. To date, eleven of those defendants either have negotiated a plea with the U.S. Attorney's Office or have been dismissed. The remaining nine defendants are scheduled to stand a three-week trial beginning May 11, 1987.

Since May of 1986, there have been more than 150 motions filed in this case. At various times throughout the past year, I have held hearings on this barrage of motions. Although I have ruled on most of the motions from the bench and by minute order, several motions have been taken under advisement. I now rule on those remaining pretrial motions.

II. PENDING MOTIONS

It would be too cumbersome and redundant to set forth each of the various pending motions filed by each defendant, especially since many of the motions are similar. To avoid such duplication, I have grouped the motions according to their respective subject categories. To the extent any motion is sufficiently unique to warrant individual attention, I address the motion specifically.

A. Motions to Suppress.¹

There are three types of motions to dismiss in this case: (1) Motions to suppress evidence arising from a court-authorized wire communication intercept (wire-tap); (2) Motions to suppress statements of moving defendants and/or co-conspirators and corresponding motions for a hearing to determine the admissibility of co-conspirator hearsay statements; and, (3) motions to suppress evidence seized in the search executed at the Colorado State Penitentiary.

(1) Motions to suppress evidence arising from a court-authorized wire communication intercept (wire-tap).

RELEVANT FACTS

On May 20, 1985, defendants assert Denver Police Officer Gary E. Salazar and Drug Enforcement Administrative Agent Eduardo Martinez filed an affidavit in support of an application for an Order authorizing a wire-tap under 18 U.S.C. § 2515, et seq. The necessary affidavit is 105 pages and avers principally to hearsay statements made by confidential sources. The affiants speak at great length of the criminal convictions and arrests of the targets of the wire-tap. The affidavit was accompanied by an application for electronic surveillance of wire communications which was signed by Assistant U.S. Attorney David J. Thomas and dated May 20, 1985. Chief Judge Finesilver issued an order authorizing the interception of wire communications on the telephone number 427-9678.²

On May 20, 1985, the order was signed by Judge Finesilver at 8:25 a.m., however, the affidavit in support of the request for the order was not signed until 8:30 a.m. At this point, the facts, or, perhaps stated more correctly, the factual inferences to be drawn from those facts, are disputed.

Defendants argue there is no record as to the time Judge Finesilver received the affidavit for review. Accordingly, defendants reason Judge Finesilver was not afforded sufficient time to make the necessary review of the affidavit and consequently could not have determined there was any probable cause to justify the order.

The government contends, however, that, "copies of the application, affidavit, and proposed order authorizing the wire-tap were submitted to Chief Judge Finesilver for his review several days prior to the appearance of affiants Gary E. Salazar and Eduardo Martinez the morning of May 20, 1985." (emphasis added).

Plaintiff's brief at 1-2.

Thus, according to the government, there was obviously sufficient time for Judge Finesilver to make the necessary determinations of whether probable cause existed.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

a. The wire-tap authorization order.

Defendants argue it is apparent from the times recorded on the documents that Judge Finesilver was not afforded sufficient time by the affiants to make an informed, deliberate, neutral and detached evaluation of probable cause as set forth in the affidavit. See United States v. Reivich, 610 F.Supp. 538 (D.C. Mo.1985) ("deference to the magistrate is not boundless, the reviewing court must still conscientiously review the sufficiency of an affidavit and affirm that a magistrate is not a mere ratification of the bare conclusions of others"). The statute requires there be probable cause for believing that an individual is committing, has committed, or is about to commit a particular offense. See 18 U.S.C. § 2515 which prohibits the use of evidence obtained by wire-tap interception when the wire-tap was not duly supported by probable cause or is unlawful for some other similar act or omission.

Logically, where a court orders the authorization of a wire-tap before there ever was a sworn affidavit, evidence acquired pursuant to such a court order qualifies as "unlawfully obtained evidence" because no probable cause determination ever could have been made. Thus, an abdication by the magistrate of his role as the neutral and detached evaluator would require suppression of the evidence because such would not have been obtained in compliance with 18 U.S.C. § 2515 and 2518(10)(a).

Although such evidence should be suppressed, defendants' assertions were unsubstantiated at the December 3, 1986, hearing. No evidence was presented to support defendant's speculation that Judge Finesilver signed the order before administering the oath to the affiants. The time notations on the order (8:25 a.m.), and on the affidavit (8:30 a.m.), are inconclusive by themselves. An equally plausible scenario is that the times merely reflect the moments when Judge Finesilver physically signed the documents but do not reflect the previous administration of the oaths and the signing of the affidavit by affiants Salazar and Martinez.

The defendant has the burden of overcoming the presumed validity of the wire-tap authorization. United States v. Newman, 733 F.2d 1395, 1398 (10th Cir. 1984). Defendants' assertion that Judge Finesilver failed to consider properly the affidavit before issuing the order is refuted by the evidence presented at the December 3, 1986, hearing, as well as by the order signed by Judge Finesilver which specifically finds the existence of probable cause. In United States v. Talbert, 706 F.2d 464, 466-67 (4th Cir.1983), the court rejected a similar argument where the defense failed to overcome the affiant's uncontradicted testimony that the wire-tap affidavit was properly made under oath. Thus, the presumption of validity remains unrebutted.

Accordingly, the motion is denied with respect to this aspect since defendants have not met their burden of rebutting a presumptively valid order. I hasten to add Judge Finesilver's determination that probable cause existed is subject to review only in the most egregious circumstances. Since it has not been demonstrated that Judge Finesilver failed to make a probable cause determination, the order is presumptively valid. It is important to bear in mind that defendant has only demonstrated the order was physically signed before the affidavits were physically signed. Defendant has not demonstrated, however, that Judge Finesilver failed to review copies of the unsigned documents and made a probable cause determination during the days preceeding the May 20, 1985 signing.

In similar circumstances, the District Court for the Eastern District of New York stated:

Movants suggest that there could have been no probable cause basis for intercepting telephone calls to and from this residence, and that they will be able so to demonstrate from the orders and papers submitted to obtain the orders. They argue that the Court should at least examine the orders, and the applications for them, in camera and determine whether the papers met the probable cause requirements of Section 2518(3)(a), (b), and (d). But that in camera or ex parte examination of the basis of the order was the very role which the judge signing the order performed as required by section 2518(1), (2), (3), (4), and (5). There is no room for an argument that a second judge should track the steps of the judge who issued the order in the hope that the two might disagree. Judges of coordinate jurisdiction do not, except in the most extraordinary situations, have the function of reviewing each other's orders.

In the Matter of the Wire Interception of Oral Communications of Al Perisco, et al., 362 F.Supp. at 713, 714 (E.D.N.Y.1973). See also Fiumara v. United States, 727 F.2d 209 (2nd Cir.) cert. denied, 466 U.S. 951, 104 S.Ct. 2154, 80 L.Ed.2d 540 (1984) (Defendant's claim that a judge's order for wire-tap did not comply with statutory requirements was neither jurisdictional nor constitutional in nature and did not constitute a fundamental defect which inherently resulted in a...