The opinion of the court was delivered by: Stanton, District Judge.
All 22 defendants are charged with participating from July
1988 to July 21, 1989 in a conspiracy to distribute more than
500 grams of cocaine and more than 50 grams of crack (count
one). Defendant Roberto Rodriguez is charged with engaging in
a continuing criminal enterprise (count two). He and defendant
Manuela Pereyra are charged with distributing a half-kilogram
of cocaine on July 15, 1988 (count three). Pereyra is charged
with distributing cocaine on three other occasions (counts
four, five and six). Defendant Pastor Cruz is charged with
distributing cocaine on three occasions (counts seven, eight
and nine). He and defendant Carmen Garcia are charged with
distributing 125 grams of cocaine on April 21, 1989 (count
ten). Defendant Juan Carrero is charged with renting, leasing
and making available apartments for the purpose of
manufacturing, storing, distributing and using a controlled
substance (counts 11, 12, 13 & 14). The government also seeks
forfeiture of Roberto Rodriguez's property constituting, or
derived from, the proceeds of his narcotics violations.
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
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
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.
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.
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
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. ...