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UNITED STATES v. MILLAN

March 29, 1993

UNITED STATES OF AMERICA,
v.
ERIC MILLAN, et al., Defendants.



The opinion of the court was delivered by: SHIRLEY WOHL KRAM

 SHIRLEY WOHL KRAM, U.S.D.J.

 Defendants in this case stand charged, by a ninth superseding indictment filed on October 6, 1992, with conspiracy to distribute and possess heroin between January 1, 1986 and October 6, 1992 in violation of 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(A). The indictment also charges various defendants with substantive narcotics trafficking offenses, the unlawful possession and use of firearms in relation to the heroin conspiracy, and engaging in "a continuing criminal enterprise" in violation of 21 U.S.C. § 848(a). On March 12, 1993, the Court learned that three agents involved in the investigation of the above-captioned case had been arrested for narcotics trafficking. Thereafter, the defendants submitted numerous motions, discussed below, which primarily seek the following relief: (1) suppression of the original wiretap order and all fruits thereof; (2) disclosure of all Government materials regarding the investigation of the three agents' misconduct; (3) dismissal of the indictment as to defendant Noel Melendez ("Melendez"); (4) appointment of a Special Prosecutor to investigate potential criminal conduct by law enforcement personnel; and (5) staying further proceedings in this case until the Special Prosecutor is appointed and completes the preliminary stages of his or her investigation. The Government opposes these motions and moves for two rulings in limine. Specifically, the Government seeks an order (1) permitting the introduction into evidence of all wiretap tapes through the testimony of two summary witnesses; and (2) precluding defense counsel from conducting any cross-examination or presenting any evidence regarding the arrests of the three agents.

 BACKGROUND

 On March 2, 1993, one week prior to the Government's opening statement in the above-captioned case, a Complaint was filed charging New York State Police Detective Jeffrey Beck ("Beck"), Sergeant Joseph Termini ("Termini") and Investigator Robert Robles ("Robles"), three of the agents involved in the Millan investigation, with conspiring to distribute approximately four ounces of heroin.

 On March 12, 1993, three days after the start of opening statements, the Government notified the Court that Beck, Termini and Robles had been arrested on narcotics trafficking charges. Thereafter, defense counsel moved in open court to dismiss the indictment on the grounds of prosecutorial misconduct.

 On March 17, 19 and 22, 1993, the Government submitted three letters in opposition to defendants' application. The Government also requested in limine rulings that would (1) permit the introduction of all wiretap evidence through summary witnesses; and (2) preclude defense counsel from conducting any cross-examination or presenting any evidence regarding the three arrests.

 In support of its application, the Government provided the Court, under seal, with the affirmation of Assistant United States Attorney David Fein, dated March 17, 1993 (the "Fein Aff."), which detailed the extent and nature of the ongoing investigation by the Internal Affairs Division (the "IAD"), into certain allegations of misconduct by past and present members of the New York Drug Enforcement Task Force (the "NYDETF"), and the affirmation of Assistant United States Attorney Dietrich L. Snell, dated March 17, 1993 (the "Snell Aff."), regarding the roles played by the agents in the Millan case.

 Specifically, the Fein Aff. alleges that on or about December 3, 1992, Agents Beck and Termini provided a confidential informant with approximately four ounces of heroin for the informant to sell. During the next three months, numerous telephone conversations allegedly occurred regarding attempts by the informant to sell the narcotics and efforts by Beck and Termini to obtain approximately $ 25,000 in exchange for the drugs. On December 12, 1992, Robles is purported to have appeared on behalf of Beck and Termini to obtain money from the informant, although he was not paid at that time. The affirmation further alleges that the criminal activity cited in the Complaint was part of a continuing pattern of crime, including: theft of jewelry from a nondrug vault at the Drug Enforcement Administration (the "DEA"); a conspiracy to rob a subject of a money laundering investigation; a conspiracy to rob a suspected drug trafficker; and a conspiracy to burglarize locations associated with narcotics traffickers. The Fein Aff. also indicates, however, that all of the illegal conduct occurred within the past twelve to eighteen months, after the arrests in the case at hand.

 The Snell Aff. indicates that Robles made five undercover heroin buys in an investigation that proceeded the instant case -- buys which ultimately formed the basis for the Government's wiretap. The buys occurred on October 29, November 2, November 28, December 20, 1990, and January 31, 1991. The Snell Aff. also indicates that all of the investigative actions, including the undercover buys, of Agent Robles were corroborated by surveillance agents. The affirmation also recounts Robles's involvement as a monitoring agent in the plant where the telephone conversations were intercepted pursuant to court authorized wiretaps. It further indicates that on August 1, 1991, Robles was assigned to a team of NYDETF and DEA agents who executed a search warrant at 324 Alexander Avenue, Apartment 3F, Bronx, New York; Detective Beck participated in the arrest of defendant Carlos Rivera, the seizure of his vehicle, and the search of 71-40 160th Street, Apartment 2-Front, Queens, New York; and Detective Termini participated in the execution of a search warrant at 110 Baruch Drive, Apartment 1D, New York, New York.

 On March 19, 1993, following an ex parte application by the Government, the Court issued an order requiring the dissemination to defendants and their counsel of the entire Snell Aff. and a redacted version of the Fein Aff., which contained sensitive information about the ongoing Robles investigation. At the Government's request, additional redactions of the Fein Aff. were permitted by a Modified Order, dated March 19, 1993. Both the Snell Aff. and redacted Fein Aff. were subsequently distributed to defense counsel.

 On March 23 and 24, 1993, the Court conducted an evidentiary hearing to determine the duration and extent of any police misconduct by agent Robles. At the hearing, defendants produced two witnesses, Joseph Serrano ("Serrano") and Rafael Abecasis ("Abecasis"). Serrano testified that he engaged in extensive criminal activity with Robles and Termini, including: (1) "fencing" stolen diamonds, gold and jewelry; (2) burglarizing a storage area; (3) impersonating a police officer; (4) surveillance of "stash houses" for potential burglarizing; and (6) an illegal car stop to steal money from a suspected drug dealer. Serrano also testified, however, that his criminal involvement with Robles began sometime in the past eighteen months. Serrano's statements were contradicted, in part, by Abecasis, a confidential informant, who testified that Serrano told him that (1) ten to fifteen agents were involved in criminal misconduct; (2) the illegal activities with Robles spanned a three to five year period; and (3) Robles threatened to kill Serrano if he talked.

 The defendants now move for an order: (1) suppressing the original wiretap order and all fruits thereof on the grounds that the order was issued without probable cause; *fn1" (2) disclosing to defense counsel all evidence regarding the Robles/Beck/Termini investigation; (3) dismissing the indictment as to defendant Noel Melendez; (4) appointing a Special Prosecutor to investigate the criminal conduct by agents of the Task Force; and (5) staying these proceedings in order to provide the Special Prosecutor with time to complete the preliminary stages of his or her investigation. The Government opposes these motions and requests an order in limine (1) permitting the introduction of the wiretaps without Robles's testimony; and (2) precluding the defendants from cross-examining any witness regarding the Robles/Beck/Termini investigation.

 DISCUSSION

 I. Motion to Suppress the Wiretap Tapes

 On January 28, 1991, this Court entered an order authorizing the interception of communications over telephone number (212) 847-2859, a cellular telephone previously identified by the NYDETF as being used by a member of the charged heroin conspiracy, Jose Colon. Interception of communications over telephone (212) 847-2859 commenced on January 30, 1991 and concluded on March 1, 1991. *fn2"

 The January 28, 1991 Order was issued on the basis of the thirty-three page Affidavit of Special Agent Dongilli, dated January 28, 1991 (the "Dongilli Aff."). The probable cause section of the Dongilli Aff. was based, in part, on five undercover buys of heroin by NYDETF member, Robert Robles, which occurred on October 29, November 2, November 28, December 20, 1990, and January 31, 1991. See Dongilli Aff. at PP 27, 28, 34, 36.

 A. Probable Cause

 The defendants move to suppress the original January 28, 1991 wiretap order as not supported by probable cause. Defendants challenge the veracity and credibility of Dongilli's sworn statement, specifically, the proof regarding the undercover buys in which Robles participated. In light of the subsequent arrests of Robles, Beck and Termini, defendants maintain that the January 28, 1991 Order must be suppressed as the issuing judge relied upon the now suspect undercover purchases of heroin to find probable cause. See Letter of Benjamin Brafman, to the Honorable Shirley Wohl Kram, dated 3/17/93, at 7. Defendants argue further that Robles actually monitored various conversations and drew certain conclusions that were incorporated into other affidavits to obtain additional warrants. Accordingly, the defendants argue that all the warrants in this case may well be infected. Id.

 In response, the Government contends that not only do the allegations of misconduct relate to events that occurred long after the wiretap phase of the Millan investigation, but also, (1) the investigative actions of Robles were corroborated by the observations and actions of other members of the NYDETF; and (2) the allegations against Robles do not involve the validity of the Title III orders or their execution and do not suggest false accusation or evidence tampering. See Letter from Dietrich L. Snell, to the Honorable Shirley Wohl Kram, dated 3/22/93, at 2; see also Fein Aff. at P 9; Letter from Dietrich L. Snell, to the Honorable Shirley Wohl Kram, dated 3/17/93, at 1-2. The Government further argues that the defendants on trial lack standing to challenge the original wiretap order, which resulted in further investigations, as none of these defendants were either named as a subject in the wiretap order or intercepted during the course of the order's execution. Id.

 The standard for probable cause in a wiretap case is the same as that for a search warrant. *fn3" United States v. Biaggi, 853 F.2d 89, 95 (2d Cir. 1988), cert. denied, 489 U.S. 1052, 103 L. Ed. 2d 581, 109 S. Ct. 1312 (1989); United States v. Fury, 554 F.2d 522, 530 (2d Cir. 1977), cert. denied, 436 U.S. 931, 56 L. Ed. 2d 776, 98 S. Ct. 2831 (1978). Under that standard, probable cause exists when

 
the facts and circumstances within the affiant's knowledge, and of which he has reasonably trustworthy information, are sufficient unto themselves to warrant a man of reasonable caution to believe that an offense is being ...

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