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UNITED STATES v. JIMENEZ

May 5, 1993

UNITED STATES OF AMERICA, Plaintiff,
v.
LUIS JIMENEZ, a/k/a "Bello," a/k/a "Juan Diego," CARLOS ENRIQUE PERDOMO, a/k/a "Rigo," JOSE URENA, a/k/a "Jose Jimenez," JOSE MIGUEL RODRIGUEZ, a/k/a "Caballo," ROMAN SANTIAGO, a/k/a "Frank Roman," YVONNE BURGOS, INES URENA, GREGORIA MOREL BEJARAN, a/k/a "Bernadina," JOSE RAMON MONTOYA, a/k/a "Monte," RAFAEL COLON, a/k/a "Andrew," JIMMY ROSADO, a/k/a "Junior," HECTOR VENTURA, a/k/a "Rubio," PEDRO GUZMAN, FRANCISCO LNU, a/k/a "Pinguino," DANIEL URENA, USMARE ST. HILARE, a/k/a "Luisito," RAYMOND COMAS, MOISES CUEVAS, APARICIA URENA SOTO, a/k/a "Nana," GLORIA SANTOS, IDELISSE REYES, a/k/a "Tammy," AGAPITO VELEZ, a/k/a "Pete," and NORBERTO GOMEZ, Defendants.



The opinion of the court was delivered by: KENNETH CONBOY

 Kenneth Conboy, District Judge:

 The defendants in this case are charged with conspiracy to distribute crack cocaine, engaging in a continuing criminal enterprise, possessing with intent to distribute crack cocaine, providing a premises for storage of cocaine, using firearms during and in relation to drug trafficking crimes and the possession of a machine gun, in violation of various sections of Titles 18 and 21, United States Code.

 The indictment before the Court names twenty-three defendants, four of whom are fugitives and several of whom have pleaded guilty. Defendants Perdomo, Montoya, Cuevas, Soto and St. Hilare have filed pretrial motions and Jimenez, Ines, Urena, Colon, Daniel Urena, Rosado, Comas, Guzman and Velez have advised the Court that they join in the motions of co-defendants.

 Defendant Hector Ventura is in the process of filing a motion not presently fully submitted, and it will be addressed when resolved in a separate order.

 When Perdomo's home was searched pursuant to a search warrant issued by a Magistrate Judge, narcotics and related paraphernalia were seized, in addition to a handgun found under a mattress in one bedroom, and a number of weapons found in a locked safe in the basement.

 Perdomo argues that the search warrant was defective because the agent's application contained a knowingly false or reckless statement, to the effect that surveillance had established that bags of crack and bags of money were carried into and out of Perdomo's house. He insists that the pertinent government surveillance reports do not support this claim, and he argues that under prevailing case authority he is entitled to a hearing on the matter.

 He has moved to suppress the wiretap evidence and the fruits of the search of his home; for an in limine ruling that weapons seized therein are inadmissible under Rule 403; for a complete severance or at least a partial severance on Count Thirteen; for a bill of particulars disclosing dates, locations, manner and means with respect to his asserted use or carriage of a firearm in relation to the charged crimes; for a striking from the indictment of the "Means and Methods" section of the Indictment on the grounds that it is irrelevant, prejudicial and a mini-summation by the Government.

 Perdomo moves to suppress wiretap evidence on the grounds that the application for the electronic surveillance failed to contain a full and complete statement regarding the pursuit or adequacy of alternative investigative procedures, in that the Government asserted that alternative investigative techniques had failed to locate the factory where cocaine was processed into crack and packaged into vials, that Perdomo's home is asserted by the indictment to be the factory, and that agents were aware of and had surveilled the premises prior to the application for the eavesdrop warrant.

 On his Rule 403 claim, Perdomo argues that there will be no facts from which a jury could infer that the weapons found in his home were readily available to protect a drug operation, and he demands a pretrial hearing on the matter. He further asks for a severance on the possession of a machine gun count if the Government cannot show that it was used during or in relation to the drug trafficking charges. He also asks for a full severance on the ground that he played a lesser role in the conspiracy and will suffer prejudicial spillover if he is tried with the other defendants.

 Cuevas moves for a severance, a striking of the "Means and Methods" section of the indictment, advance notice of 404(b) evidence that the Government intends to introduce, and a bill of particulars that seeks the identification and reports of expert witnesses, the names of witnesses not to be called by the Government, the notes, statements and reports of all Government witnesses, agreements and payments between the Government and its cooperating witnesses, the results of any polygraph examinations and the criminal records of any Government witnesses, the names of co-conspirators and the manner in which Cuevas committed the crimes alleged.

 Soto moves to suppress wiretap evidence on the ground that the application failed to allege adequately that other investigative procedures had been tried and failed or were unlikely to succeed if tried or were too dangerous. He in substance argues that twelve months of surveillance and the use of four confidential informants had provided the Government with detailed information about the Louis Bello narcotics organization, and that the seven objectives of the wiretap as set forth in the application had in fact been already largely achieved.

 St. Hilare moves for a bill of particulars, severance, disclosure of the identity of the four confidential informants and an opportunity to interview them, disclosure of any expert witnesses and their reports, disclosure of other crimes evidence, and suppression of evidence taken from his person at the time of his arrest, on the ground that the arrest was without probable cause.

 THE ADEQUACY OF THE INVESTIGATIVE TECHNIQUES AVERMENTS OF THE GOVERNMENT'S WIRETAP APPLICATION

 In paragraphs 12 through 44 of his affidavit, ("Mabray Affidavit") Special Agent Keith Mabray provided an overview of the Drug Enforcement Administration's investigation of the alleged criminal enterprise ("Bello organization") that is the subject of the indictment, and a summary chronology of particular investigative steps that had been taken. In brief, the Mabray Affidavit explained that information concerning the alleged organization, its members and leadership had been compiled from several sources, over a period of more than one year, which sources included: 1) three confidential informants ("CI-1," "CI-2" and "CI-4") who admitted to having worked in the Bello organization, and were convicted narcotics offenders, and one confidential informant ("CI-3") who assisted twice in the purchase of crack from Bello organization members (Mabray Affidavit, PP 14-19); 2) New York City Police Department ("NYPD") and Bureau of Alcohol, Tobacco and Firearms ("ATF") personnel who had executed several search warrants at apartments within 3428 and 3430 Park Avenue in the Bronx and 993-5 Intervale Avenue in the Bronx, which apartments, according to CI-1, CI-2 and CI-4, were being used by the Bello organization to store crack, resulting in the seizure of quantities of crack and several firearms, but which produced no arrests (Id., PP 21, 32, 43); 3) several consensually monitored telephone calls between CI-4 and the defendants Jose Urena, Norberto Gomez, and Tammy Reyes, and subsequent monitored purchases of crack by CI-4 from Urena, Gomez, Comas and Velez (Id., PP 22-25); 4) DEA surveillance of exchanges of suspected crack and money by certain members of the organization (Id., PP 28, 30, 31, 34, 39, 40, 43a); 5) pen register information detailing telephone calls from the Intervale Avenue telephone to several telephones and paging devices linked to the Bello organization and its members (Id. at P 44); and 6) utility and telephone records checks. Through these sources of information and investigative techniques, the DEA identified buildings of likely significance to the organization, including 3315 Cruger Avenue; 3046 Gunther Avenue; 3430 Park Avenue; 3428 Park Avenue; 2105 Muliner Avenue; and 975 Intervale Avenue.

 As set out in the Mabray Affidavit, according to information provided by the informants, the Bello organization involved numerous participants, only some of whom the PEA was able to physically observe, let alone surveil. See generally Mabray Affidavit. Some of these alleged participants worked within the sales spots of the organizations (Id., PP 18, 19), and one allegedly worked in the organization's "crack" factory (Id., P 30). CI-4 knew only the first names of some of the members of the organization.

 As the above-cited paragraphs of the Mabray Affidavit explained, CI-4 had an ongoing relationship with two of the organization members during the period of the investigation, but CI-4 was not, during the pendency of the more than 12-month investigation, invited into three locations tied to the Bello organization -- 3315 Cruger, 2105 Muliner and 3046 Gunther Avenue. Moreover, CI-4 knew of certain members of the organization on a second-hand basis only.

 In addition, during the course of the investigation, neither the DEA nor CI-4 was able to identify the source of the Bello organization's raw cocaine, or the "factory" of the organization that CI-4 had been told about. None of the informants knew, moreover, whether Jimenez himself reported to superiors.

 The Mabray Affidavit also explained that members of the Bello organization appeared to be surveillance conscious (see Mabray Affidavit, PP 24, 31, 39). In addition, weapons or ammunition had been recovered in each of the NYPD searches at the Park Avenue stash apartments (Id., PP 21, 32, 43).

 On the basis of the information obtained through the investigation, Agent Mabray advised former Chief Judge Brieant:

 (1) that physical surveillance of suspected Bello organization members had not resulted in the actual identification of numerous suspected members of the organization, and, inevitably, could not establish crucial details of the operations of the organization, such as the roles of all of the individuals associated with the organization, and the locations of physical evidence, such as drugs, weapons, and money (Id., P 45(a));

 (2) that the identities of the organization's sources of cocaine were not known (Id.);

 (3) that intensive physical surveillance on public streets and in public locales of the kind used by the Bello organization was difficult, particularly in light of the surveillance consciousness that certain subjects of the investigation had demonstrated, and because such surveillance would be likely to alert the subjects that their activities were being monitored and would prompt them to modify or further disguise their methods of operation in order to avoid detection (Id., P 45(b));

 (4) that, although the confidential informants had provided much valuable information in connection with the investigation, they were not in a position to know or discover the complete scope and methods of the narcotics operations because the organization appeared to be quite large; the informants were privy to certain illegal conduct but not to all critical aspects of the organization's operations such as its "factory" or sources of cocaine; and it seemed unlikely that the informants would ever acquire this information or the identities of all of the persons who were working for the organization (Id., P 45(d));

 (5) that infiltration of the organization by an undercover officer was not realistic because the top management of the Bello organization appeared to be tightly knit and wary of outsiders (Id.);

 (6) that applications for search warrants for all of the locations tied to the Bello organization would be premature since the full scope of the conspiracy had not yet been fully discovered and searches would inevitably alert the targets of the investigation, and, in any event, it was not even known where all of the targets of the investigation were receiving, hiding and distributing the money collected or narcotics sold (Id., P 45(e));

 (7) that use of a federal grand jury did not appear to be a promising method of investigation because (1) the witnesses who could provide additional evidence to the grand jury as to the activities, the sources of supply, and the identities of conspiracy members were members of the conspiracy themselves, (11) most of these individuals had not been identified and, in any event, faced prosecution and would not likely testify voluntarily, (iii) it was not appropriate to seek immunity for any of the known conspirators to compel their testimony because public policy supported their prosecution, (iv) the known conspirators would not know (or would not truthfully tell the Government) the manner in which higher-level confederates were running their narcotics business or the identities of their suppliers or other high-level confederates; (v) it appeared likely that the subjects would commit contempt rather than testify in view of their solid ties to the narcotics organization described herein; and (vi) the issuance of grand jury subpoenas to other individuals not involved directly in the conspiracy likely would not lead to the discovery of critical information and undoubtedly would alert conspiracy members to the pendency of an investigation (Id., P 45(c));

 (8) that telephone toll records and pen register devices, though useful to show probable usage of telephones in drug-related calls, could only show that a conversation had occurred and not what was discussed and by whom (Id., P 45(b)); and

 (9) that the use of electronic surveillance could, among other things, reveal the location of the "factory" used by the organization to process and package crack and/or identify the sources of the organization's supplies of raw cocaine and crack; that electronic surveillance would enhance any physical surveillance, not only by identifying individuals, but also in clarifying the nature of activities and meetings, the locations of those meetings, and tools of the subjects' narcotics trade; and that direct, admissible evidence against the numerous coconspirators with whom the informants did not have any relationship could be collected only through electronic surveillance (Id., P 45(a), (d)).

 The defendants challenge the Government's wiretap application chiefly on the ground that the Government's investigation had achieved a high degree of success before the wiretap was initiated. Accordingly, defendants argue, there was no need for a wiretap.

 This objection misunderstands the nature of the "alternative investigation techniques" requirement. The Government is not required to hit a blind alley before applying for a wiretap. The Government is only required to provide a thorough explanation of investigative steps taken and a reasonable explanation as to why a continuation of similar efforts does not appear likely to achieve legitimate investigative objectives.

 The approach and content of the Mabray Affidavit was entirely consistent with similar efforts found broadly acceptable by the Second Circuit. For example, in United States v. Torres, 901 F.2d 205 (2d Cir. 1990), the Court wrote:

 
"The affidavit submitted by the Government in support of its wiretap application herein described the investigation of the Torres Organization over a fourteen-month period, explaining in detail the traditional investigative techniques employed, including the use of two confidential informants, physical surveillance, record checks and pen registers. The affidavit asserted that these methods only provided a limited picture of the Organization, given the minor role that the two informants played therein and the overall scale of the operation. Moreover, the affidavit provided sound reasons for declining the use of a grand jury or search warrants at the juncture of the investigation." 901 F.2d at 232.

 Similarly, in United States v. Wilkinson, 754 F.2d 1427 (2d Cir.), cert. denied, 472 U.S. 1019 (1985), the Court explained the adequacy of the wiretap application reviewed in that case:

 
Nor do we find any merit in Mac's contention that the wiretap orders issued by Judge Edelstein and Judge Carter were defective for failure to show, as required by 18 U.S.C. § 2518(1)(c), that other investigative techniques had been tried and failed or would be unlikely to succeed or be too dangerous. We find no reason to disturb Judge Weinfeld's opinion on the subject, 578 F. Supp. 980 (S.D.N.Y. 1984), which is entitled to deference, United States v. Martino, 664 F.2d 860, 867 (2d Cir. 1981), cert. denied, 458 U.S. 1110 (1982). After thoroughly investigating the feasibility of alternatives, he found that (1) surveillance had been, and would likely continue to be, ineffective; (2) infiltration was unlikely to be successful because of the secretive nature of the enterprise; (3) concerns about the safety of the agents had arisen; (4) reliance on a search warrant would be premature; and (5) to subpoena Ella Shipp would be worthless, since she was unlikely to testify against her coconspirators even if she were granted immunity. His reasoned explanation, grounded in the facts of the case, "squares with common sense." United States v. Lilla, 699 F.2d 99, 105 (2d Cir. 1983). This was "no small time narcotics case" of the type faced in Lilla, where simple investigative techniques might have sufficed, but a far-flung conspiracy that was impenetrable except by sophisticated electronic means."

 See also United States v. Schwartz, 535 F.2d 160, 163 (2d Cir. 1976), cert. denied, 430 U.S. 906, 51 L. Ed. 2d 581, 97 S. Ct. 1175 (1977); United States v. Steinberg, 525 F.2d 1126, 1130 (2d Cir.), cert. denied, 425 U.S. 971, 48 L. Ed. 2d 794, 96 S. Ct. 2167 (1976); United States v. Esposito, 423 F. Supp. 908, 912 (S.D.N.Y. 1976), aff'd from the bench, Docket 77-1147 (2d Cir. 1977).

 The defendant Soto also argues that the Mabray Affidavit was misleading. For the reasons set forth in the Government's Memorandum of Law In Opposition to Defendants' Pretrial Motions, dated January 25, 1992, 25-30, we find this assertion to be entirely meritless.

 THE SEIZURE OF EVIDENCE AT 3046 GUNTHER AVENUE

 As noted, defendant Perdomo contends that the affidavit of Special Agent Mabray, sworn to on June 17, 1992 and filed in support of the search warrant authorized by the Magistrate Judge contained a statement that was either knowingly false or made with reckless ...


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