USA v. Cabrera

• Decision Date: 29 March 2010
• Docket Number: Criminal Action No. 04-446-49 (TFH).
• Citation: United States v. Cabrera, 699 F.Supp.2d 35 (D. D.C. 2010)
• Parties: UNITED STATES of America v. Erminso Cuevas CABRERA, Also known as “Mincho,” Defendant.
• Court: U.S. District Court — District of Columbia

699 F.Supp.2d 35

UNITED STATES of America

v.Erminso Cuevas CABRERA, Also known as “Mincho,”Defendant.

Criminal Action No. 04-446-49 (TFH).

United States District Court,District of Columbia.

March 29, 2010.

Pablo Quinones, Randall Wade Jackson, Eric J. Snyder, U.S. Attorney's Office, New York, NY, for United States of America.

Gary M. Sidell, Washington, DC, for Defendant.

MEMORANDUM OPINION

THOMAS F. HOGAN, District Judge.

Pending before the Court is a Motion For Reconsideration Of Defendant Erminso Cuevas Cabrera's Motion To Suppress Electronic Surveillance Evidence [DocketNo. 209], which seeks reconsideration of the Court's February 23, 2010, bench decision denying Cuevas Cabrera's motion to suppress all electronic surveillance and wiretap evidence the government plans to introduce at trial, as well as any evidence derived from the wiretaps.For the reasons set forth below, the Court will deny the motion.

BACKGROUND AND PROCEDURAL POSTURE

During a status conference held in the spring of 2009, the government reportedly represented that it did not plan to introduce any wiretap evidence against defendantErminso Cuevas Cabrera.Def.'s Mot.For Reconsid. of Def. Erminso Cuevas Cabrera's Mot. to Suppress Elec. Evidence 4 (hereinafter “Def.'s Mot. for Recons. ____”).Absent a transcript of that hearing, however, it is unclear whether the government made that representation simply because, at that time, it lacked any such wiretap evidence involving Cuevas Cabrera.¹Regardless, by a letter dated August 13, 2009, the government notified Cuevas Cabrera that it was disclosing three DVDs containing intercepted wire communications, two of which involved Cuevas Cabrera.Gov't's Resp. in Opp'n to Def. Erminso Cuevas Cabrera's Feb.21, 2010 Mot. to Suppress Ex.A (Letter from Jackson, Snyder & Quinones to Slaight, Sidell, Gilbert & Hernandez (Aug. 13, 2009)).Indeed, the government's letter stated:

[T]his letter provides additional discovery under Rule 16(a) of the Federal Rules of Criminal Procedure(“Fed. R.Crim.P.”), and seeks reciprocal discovery.

Disclosure By the Government

Based on your requests, I am enclosing copies of the following documents:

1.CD-ROM titled “Tovar Wire Docs” containing previously sealed documents related to a wiretap including applications, orders, affidavits and ten day reports;

2. 3 DVDs labeled “Tovar Wire” containing the intercepted calls for the above referenced wiretap.(Of the four defendants before the Court, only defendantErminso Cuevas Cabrera was intercepted on these calls.Additionally, the Government has identified only two calls in which Cuevas Cabrera was intercepted: Call # 1437 and Call # 1443.Please find hard copies of the call summaries attached)....

Id.(emphasis added).In addition, on January 11, 2010, the government sent another letter to Cuevas Cabrera's counsel that attached a trial exhibit list explicitly identifying the two wiretaps involving Cuevas Cabrera as evidence the government planned to introduce at trial.²Gov't's Resp. in Opp'n to Def. Erminso Cuevas Cabrera's Feb.21, 2010 Mot. to Suppress Ex. B (Letter from Jackson, Snyder & Quinones to Sidell & Retureta (Jan. 11, 2010)).

Two days before jury selection began-and about six months after initially receiving notice about the existence of the wiretaps and more than one month after receiving confirmation that the government planned to use the wiretaps at trial-Cuevas Cabrera filed a Motion To Suppress Electronic Surveillance Evidence And All Physical Evidence Derived From Such Evidence [DocketNo. 201](hereinafter cited as “Def.'s Mot. to Suppress ____”).To put the substance of the motion in perspective, 14 pages of the 25-page motion consisted exclusively of a table listing the Title III wiretap applications, affidavits and orders that Cuevas Cabrera purported to challenge.Def.'s Mot. to Suppress 3-17.It should be noted, however, that Cuevas Cabrera neglected to provide the Court with copies of any of the challenged applications, affidavits or orders, thereby precluding the Court from actually reviewing the documents to assess the potential merits of his arguments.Moreover, the remaining pages of the motion consisted primarily of what defense counsel conceded were placeholder arguments that were conclusory and served simply as an effort to preserve the legal issues for appeal.See Hr'g Tr. June 23, 2010.The motion lacked any actual factual analyses of the challenged applications, affidavits or orders.Indeed, there was not a single citation to a specific application, affidavit or order that Cuevas Cabrera asserted failed to comply with law.

During the pretrial hearing held on February 23, 2010, which was two days after Cuevas Cabrera filed his motion to suppress the wiretaps and one day before jury selection began, the Court entertained brief arguments about the motion.Ruling from the bench at the conclusion of the arguments, the Court denied Cuevas Cabrera's motion on the grounds that it was untimely and lacked substance.Late that same day, Cuevas Cabrera filed the pending Motion For Reconsideration Of DefendantErminso Cuevas Cabrera's Motion To Suppress Electronic Surveillance Evidence and provided the Court with a CD-ROM containing copies of all the applicable applications, affidavits and orders that were being challenged.Cuevas Cabrera now contends that reconsideration of his original motion to suppress the wiretaps is warranted because:

[A]nalysis of the Title III applications, affidavits and orders reveals an extraordinary use of Title III interceptions....Such a level of interception calls into question whether exhaustion of other investigative techniques were employed, and whether probable cause was satisfied.Additionally, questions have been raised about the integrity of the law enforcement investigation that led to the wiretaps.³

Def.'s Mot. for Recons.1.

THE WIRETAP APPLICATIONS AND INVESTIGATION

The wiretaps at issue were authorized pursuant to 18 U.S.C. § 2518 by the Honorable Alan S. Gold, a United States District Judge for the United States District Court for the Southern District of Florida.On June 15, 2004, Judge Gold issued the first order authorizing the interception of the wire communications challenged by Cuevas Cabrera.The affidavit that accompanied the application for the June 15, 2004, wiretap order was attested to by a Special Agent at the Drug Enforcement Agency(“DEA”) and reveals a rather interesting investigative strategy principally involving the use of anonymous confidential informants.To summarize the affidavit, which the Court should note is thirty-six (36) pages long, the investigation began in October 2002 as a covert operation to infiltrate Ferney Tovar's organization.DEA Aff. ¶ 38(June 15, 2004).Ferney Tovar was alleged to be “a long term and high-ranking member of the 14th front of the FARC” who “ha[d] been involved in the trafficking of cocaine with the FARC for most of his life.”⁴Id.¶ 31.The government planned to use reliable confidential informants to establish communications with Ferney Tovar, act as transportation brokers to move large quantities of cocaine into the United States, and provide Tovar and his key associates with four satellite telephones and technical support.Id.¶ 38.

The satellite telephones the government expected the confidential informants to supply to Ferney Tovar's organization were registered and activated by the government using a fictitious name and address, and the government sought to intercept the wire communications that would occur when the satellite telephones were used by Tovar and his associates-Farouk Shaikh-Reyes, Manuel Marulanda, Diego Fernadez Aristizal, and Jose Benito Cabrera Cuevas(a/k/a “Favian Ramirez”)-who were target subjects of the investigation and the wiretap application.Id.¶¶ 9, 11, 18.The government gave the satellite telephones to one of the confidential informants who then provided them to Ferney Tovar's emissary, Henry Villota, for delivery to Tovar, Marulanda, Cabrera Cuevas, and Jorge Briceno-Saurez(a/k/a “Mono Jojoy”), who was believed to be the commander of the Eastern Bloc and a member of the FARC's secretariat.First Progress Report¶¶ 2, 8.

As made clear by later applications to continue the wiretaps of the satellite telephones, the operation was a success in light of the fact that the satellite telephones were delivered to, and used by, Ferney Tovar and other targeted individuals, and the government was able to intercept communications over them.See e.g., Application For The Continued Interception Of Wire Communications 11-36 (Aug. 18, 2004)(summarizing intercepted communications and explaining that two of the satellite telephones were being use more extensively but that the other two satellite telephones “will reach their intended recipients located in the remote areas of the Colombian jungle within the next 30 days and will be utilized more frequently”).As a result, the government sought additional court orders authorizing it to continue intercepting communications over the satellite telephones.The applications to continue intercepting communications were filed approximately every 30 days throughout 2004 and early 2005 until the last application was filed on April 18, 2005.With each application, the number of individuals targeted increased based on the prior intercepted communications such that what started out as a request to intercept communications involving five (5) target subjects snowballed and concluded with the final application identifying approximately eighty-nine (89)⁵ individuals as target subjects, including Cuevas Cabrera, who was identified as “ ‘El Negro’ a/k/a Dionisio (LNU), a/k/a ‘Mincho’(previously thought to be a/k/a ‘Nincho’).”DEA Aff. ¶ 2(Apr. 18, 2005).

It is against this backdrop that the Court now considers the merits of Cuevas Cabrera's motion for reconsideration.

ANALYSIS

I.Applicability of Motions for...