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U.S. v. RODRIGUEZ

April 3, 1990

UNITED STATES OF AMERICA
v.
ROBERTO RODRIGUEZ, A/K/A "HACHA," NELSON GARCIA, A/K/A "NELSON CABILLA," MIRELLA PACHECO, JOHN DOE, A/K/A "MANUELITO," JUAN CARRERO, EARL GARDNER, NOEL AGUERO, MANUEL CARRILLO, A/K/A "LUIS ROSADO," A/K/A. "EL GORDO," A/K/A "71," JOSE COTS, A/K/A "PADRINO," RAFAEL FLORES, A/K/A "FLUFFY," JOHN DOE, A/K/A "PUCHO," JOHN DOE, A/K/A "EL NEGRO," A/K/A "JOSE MELENDEZ," NELSON NOA, RONNIE L'RUE, AUREA RODRIGUEZ, MARIA RODRIGUEZ, A/K/A "MARUCA RODRIGUEZ," AWILDA SALCEDO, EVARISTO VALENTIN, A/K/A "SHORTY," PASTOR CRUZ, CARMEN GARCIA, MANUELA PEREYRA, A/K/A "ABUELA," AND AVELINO ESPINOZA, A/K/A "CUBA," DEFENDANTS.



The opinion of the court was delivered by: Stanton, District Judge.

OPINION AND ORDER

The defendants jointly move to suppress evidence obtained from wiretaps and to exclude reference to aliases in the indictment.*fn1 Defendants Manuel Carrillo, Nelson Noa and Nelson Garcia move to suppress physical evidence obtained from searches of their apartments. Garcia moves to dismiss the indictment against him for improper venue. Noa moves to exclude references at trial to the defendants' common Cuban heritage. Defendant Earl Garner moves to suppress evidence obtained from the wiretaps and to dismiss the indictment against him for prosecutorial misconduct and improper venue.

Because of the number of defendants, charges and motions, a short summary of the allegations against the defendants is helpful.

1. Summary of the allegations

According to the government:*fn2

Roberto Rodriguez was the head of a large-scale drug organization that distributed cocaine and crack in the Bronx, New York (herein the "organization"). The organization operated a "retail outlet" at 769 Bryant Avenue in the Bronx, where it sold crack and cocaine. The retail outlet was open 24 hours a day, with employees working two twelve-hour shifts. At the end of each shift, money from the sale of drugs was transferred to a nearby "office", located at 1315 Lafayette Avenue, apartment # 1-E, in the Bronx (herein the "office"). Revenues often totalled as much as $30,000 per day. Records of receipts and outlays were kept at the office. Cocaine was stored in nearby "stash pads", and employees in the office called for more cocaine when needed.

Every day or two, Rodriguez drove from New Jersey to the office to pick up and take the cash proceeds to his headquarters at the Imperio Cafe, a restaurant he owned in West New York, New Jersey, where he directed the organization.

The organization also distributed cocaine through defendant Manuela Pereyra, who sold it from her apartment at 1204 Gilbert Avenue, in the Bronx.

The remaining defendants played various roles in the organization. Some were managers at the retail outlet, some were "cookers" (those who turn cocaine into crack by cooking it) some were couriers, some worked at the office, maintaining records and keeping Rodriguez apprised of the operation, and some were "steerers", directing purchasers to the retail outlet.

2. Pen registers and wiretaps

The DEA arranged with New Jersey Bell Telephone Company to lease a line running from near the Imperio Cafe in West New York, New Jersey to DEA headquarters at 555 West 57th Street, New York, New York. (Affidavit of DEA Agent Kenneth Bambach, sworn to Feb. 27, 1990, at ¶ 3, attached as exhibit 2 to the Cunningham affidavit). The pen registers were installed, monitored and used at DEA headquarters in New York. Ibid.

On June 21, 1989 the government applied to the Hon. Peter K. Leisure, a judge of the United States District Court for the Southern District of New York, for electronic surveillance of the telephones at the office and at the Imperio Cafe. The application was based on the affidavit of DEA Agent Kenneth Bambach, who stated:

  One of the telephones for which an order of
  interception is sought is located in the Bronx,
  within the Southern District of New York. The
  remaining four telephones are located in West New
  York, New Jersey. However, the interception
  equipment for these telephones, as for the first,
  will be installed at DEA headquarters in
  Manhattan, within the Southern District of New
  York. Further all five telephones will be
  monitored at DEA headquarters in Manhattan.

Judge Leisure granted the application.

  According to DEA Agent Bambach, Pursuant to his
  order, monitoring and recording equipment was
  installed on June 21, 1989 at DEA headquarters in
  a room set aside for the purpose ("the Monitoring
  Room"). The monitoring and recording equipment
  was installed in tandem with the pen register
  devices already installed on these telephones. As
  a practical matter, no action was necessary in
  New Jersey to commence the surveillance of the
  telephones; all actions were taken at DEA
  headquarters in Manhattan.
  5. The monitored telephones were monitored by
  agents of the DEA and by Special Federal Officers
  in the Monitoring Room during the thirty days of
  the existence of Judge Leisure's order. Tape
  recording equipment maintained in the Monitoring
  Room recorded the monitored conversations, and
  the tape cassettes were maintained at DEA
  headquarters in Manhattan.

Id. at ¶¶ 4, 5.

On July 7, 1989 the government applied to the Hon. John W. Bissell, a judge of the United States District Court for the District of New Jersey, to tap the four telephone lines in New Jersey. Judge Bissell granted the application.

Defendants jointly move to suppress evidence obtained from the taps between June 21 and July 7, 1989, arguing that Judge Leisure lacked jurisdiction to order wiretaps on telephones located outside of the Southern District of New York. They also move to suppress all evidence obtained from the wiretaps, arguing that the affidavit of Agent Bambach failed to establish the need for wiretaps and the government failed to minimize the intercepted conversations.

Defendant Earl Garner moves to suppress all evidence obtained from the wiretaps, arguing that it is the fruit of illegally used pen registers. Garner states that the pen registers were illegal because a magistrate lacks authority to order them, and, in any event, the magistrate lacked jurisdiction to order pen registers on telephones located in New Jersey. He also claims that the evidence must be suppressed because the tapes of the communications intercepted were sealed by a magistrate, rather than by a judge, as required by law.

(a) The wiretaps

(i) Jurisdiction

The procedures for obtaining federal authorization of wiretapping and other forms of electronic surveillance are set forth in Chapter 119 of Title III of the Omnibus Crime Control and Safe Streets Act ("Title III"), 18 U.S.C. § 2510-2521. Section 2518(3) provides that a judge may enter an order "approving interception of wire, oral, or electronic communications within the territorial jurisdiction of the court in which the judge is sitting. . . ."

Defendants state that Judge Leisure lacked jurisdiction to authorize wiretapping of telephones located outside of his territorial jurisdiction. They make much of the argument that the claimed defect is "jurisdictional". This may overstate the implications of the issue involved. Alleged violations of the territorial jurisdiction's limitations were not such a "core" concern of Congress in enacting Title III as to be cognizable on a habeas corpus petition; such violations are "merely formal or technical errors." Adams v. Lankford, 788 F.2d 1493, 1497-1500 (11th Cir. 1986).

More to the point, defendants' motions raise the issue of where the "interception" occurred: at the place in New Jersey where electronic means to divert the impulses containing the conversations were installed, or at the place in New York where the impulses were converted into sound and were heard by humans (or by a recording machine as surrogate for the human ear — see U.S. v. Turk, 526 F.2d 654, 658 (5th Cir.), cert. denied, 429 U.S. 823, 97 S.Ct. 74, 50 L.Ed.2d 84 (1976)).

The answer is given by the definition of "intercept" in the statute: Section 2510(4) defines "intercept" as "the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device".

The case law interprets the term "aural acquisition" to mean where the communication is actually heard or where it is recorded.

In Evans v. State, 252 Ga. 312, 314 S.E.2d 421, cert. denied, 469 U.S. 826, 105 S.Ct. 106, 83 L.Ed.2d 50 (1984), wiretaps were authorized by a Fulton County Superior Court judge. Some of the telephones that were tapped, and the equipment to intercept calls to those telephones, were located outside of Fulton County. The calls, however, were monitored by a surveillance team in Fulton County. Defendants argued that the judge lacked jurisdiction to authorize wiretaps on telephones located outside of Fulton County. The Georgia Supreme Court applied Title III to wiretaps authorized by a state judge, and found that the aural acquisition occurred where the calls were heard. "It is undisputed that the only aural acquisition of the defendant's communications occurred in the Atlanta Judicial Circuit (Fulton County) where the judge authorizing the investigative warrants was sitting. We therefore find that federal law authorized issuance of these warrants by the Fulton Superior Court judge." Id. 314 S.E.2d at 426.

The defendants filed a habeas corpus petition in federal court, again arguing that the Fulton County Court judge lacked jurisdiction to authorize the wiretaps. The district court rejected the argument, stating:

  Section 2518(3) requires that the
  judicially-approved "interception" must occur in
  the territorial jurisdiction of the court in
  which the judge issuing the wiretapping order is
  sitting — in this case, Fulton County. The
  undisputed facts in this case (and petitioners'
  allegations, since they only dispute the state
  courts' legal conclusion based on these facts) show
  that the "listening post," at which the challenged
  evidence was recorded, was located in Fulton
  County. Title III defines "intercept" as the "aural
  acquisition of the contents of any wire or oral
  communication through the use of any electronic,
  mechanical, or other device." 18 U.S.C. § 2510(4).
  (emphasis added). The legislative history
  accompanying Title III indicates that the
  definition of "intercept" is "intended to protect
  the privacy of the communication itself and not the
  means of communication." S.Rep. No. 1097, 90th
  Cong., 2d Sess. 90,

  reprinted in 1968 U.S.Code Cong. & Ad. News 2112,
  2178. Therefore, the "interceptions" which are at
  issue in this case occurred not where the tapped
  telephone calls were mechanically interfered with
  (something which occurred with respect to
  twenty-three telephones located outside of Fulton
  County, as well as eighteen telephones located in
  Fulton County) but where the contents of the
  telephone calls — the conversations — were heard
  or aurally acquired.
  Adams v. Stynchcombe, C84-2312A, slip op. at 8-10,
  (N.D.Ga. Mar. 5, 1985) (emphasis in original),
  aff'd on other grounds, sub nom. Adams v. ...

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