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UNITED STATES v. LOVE

August 9, 1994

UNITED STATES OF AMERICA, Plaintiff,
v.
RICHARD LOVE a/k/a "Ronnie," Defendant.


Edelstein


The opinion of the court was delivered by: DAVID N. EDELSTEIN

EDELSTEIN, District Judge:

 Count One of Indictment 90 Cr. 913 charges the defendant, Richard Love a/k/a "Ronnie" ("Love" or "defendant"), and others with conspiring to distribute and possessing with intent to distribute more than one kilogram of heroin, as well as quantities of other narcotics, in violation of 21 U.S.C. § 846. Count Eighteen charges defendant with using and carrying two firearms during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c).

 Defendant has filed several pretrial motions. Defendant seeks the suppression of intercepted telephone communications, evidence gathered by pen register devices, evidence seized from an apartment, and certain post-arrest statements made by Love. In addition, defendant seeks dismissal of this Indictment, arguing that continued prosecution would violate his right to a speedy trial. Finally, defendant moves for extensive pretrial discovery. For the reasons discussed below, defendant's motions are denied.

 I. WIRETAPS

 On March 6, 1990, Judge Leonard B. Sand issued an order authorizing the interception of oral communications over (212) 292-9440, a telephone used by one of Love's co-defendants in this case, Justine Roberts, which was located in Apartment 2S, 575 East 140th Street, Bronx, New York. The order was issued on the basis of an affidavit sworn to by Special Agent Edward J. Dzialo on March 6, 1990 ("March 6, 1990 Dzialo Aff.").

 On April 11, 1990, upon the expiration of the initial wiretap order, Judge Sand signed an order extending the government's authority to intercept conversations over Roberts' telephone for an additional thirty days. Judge Sand's April 11, 1990 extension order was issued on the basis of an affidavit sworn to by Agent Dzialo on that date ("April 11, 1990 Dzialo Aff.").

 On November 6, 1990, Judge Milton Pollack signed an order authorizing a wiretap on (212) 665-4636, the telephone number used by Justine Roberts at that time inside her apartment at 575 East 140th Street. The order was issued on the basis of an affidavit sworn to by Special Agent Hope Wittman on November 6, 1990 ("Wittman Aff.").

 Love contends that the evidence obtained from these court authorized wiretaps should be suppressed because the government failed to establish the inadequacy of normal investigative procedures in the various applications submitted. In addition, Love argues that suppress ion of this evidence is mandated because the first periodic report ("First Periodic Report") for the wiretap authorized by Judge Sand on March 6, 1990 was received and reviewed by the Part I judge, Judge Vincent L. Broderick, rather than by Judge Sand.

 A. Other Investigative Techniques

 Defendant argues that the intercepted conversations were unlawfully intercepted because the government did not establish that normal investigative techniques had failed or were unlikely to succeed. Pursuant to 18 U.S.C. § 2518(1)(c), an application for interception of wire communications or other electronic surveillance must include "a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous." This requirement is to be construed in a "common sense and realistic fashion." United States v. Ivic, 700 F.2d 51, 57 (2d Cir. 1983) (citation omitted). The purpose of this requirement is not to preclude the use of electronic surveillance until after all other possible means of investigation have been exhausted by investigative agents, but to "require that the agents inform the authorizing judicial officer of the nature and progress of the investigation and of the normal law enforcement methods." United States v. Vazquez, 605 F.2d 1269, 1282 (2d Cir.) (citation omitted), cert. denied, 444 U.S. 981, 62 L. Ed. 2d 408, 100 S. Ct. 484 (1979). A reasoned explanation grounded in the facts of the case, which squares with common sense, is all that is required. In this regard, the Second Circuit has stated that "wiretapping is particularly appropriate when the telephone is routinely relied on to conduct the criminal enterprise under investigation." United States v. Young, 822 F.2d 1234, 1237 (2d Cir. 1987) (quoting United States v. Steinberg, 525 F.2d 1126, 1130 (2d Cir. 1975), cert. denied, 425 U.S. 971, 48 L. Ed. 2d 794, 96 S. Ct. 2167 (1976)).

 The March 6, 1990 Dzialo affidavit sets out the investigative techniques used and fully explains the reasons for resorting to electronic surveillance. According to this affidavit, as of March 6, 1990, the government had used in its investigation of this matter, inter alia, confidential informants, an undercover agent making undercover purchases, consensually monitored telephone calls, physical surveillance, and analysis of telephone toll records and pen register information. According to the affidavit, these investigative techniques, and other available investigative techniques that were not used, failed or appeared likely to fail because (1) physical surveillance provided little information about the significance of meetings, the identity of some of the individuals involved, and their roles in the meetings (March 6, 1990 Dzialo Aff., at PP 28, 36, 43(a), (b) & (c)); (2) pen registers and telephone toll records were helpful but were incapable of providing agents with the substance of the discussions or the identities of participants (id. at P 43(c)); (3) use of a federal grand jury did not appear promising because those who could provide additional information about the alleged conspiracy were themselves alleged members of the conspiracy (id. at P 43(d)); (4) there were problems inherent in the use of investigative grand juries and interviews because such techniques would have alerted the subjects to the investigation (id.); (5) many of the coconspirators had not yet been identified and the government did not wish to immunize co-conspirators whose roles in the enterprise were sufficiently serious such that the grant of immunity would frustrate, rather than serve, the public interest (id.); (6) those believed to be lower level confederates were unlikely to provide substantial information concerning how the higher-level confederates ran the enterprise (id.); (7) applications for search warrants would have been premature as the investigation had not revealed with any degree of certainty the locations where the targets of the investigation hid their heroin or other evidence of narcotics trafficking (id. at P 43(e)); (8) the results of any searches would not have been likely to identify unknown conspirators or sources of supply, or to reveal the nature and extent of the enterprise (id. at P 43(f)); (9) further use of undercover agents or confidential informants was not likely to be successful because it would have been unlikely that either could have infiltrated the organization to the degree necessary to obtain the type of information that could be retrieved through the interception of wire communications (id. at P 43(f)); and (10) the two confidential informants used in the investigation were not in a position to provide detailed intelligence about the full scope of the conspiracy (id.).

 Judge Sand's April 11, 1990 extension order was issued on the basis of an affidavit sworn to by Agent Dzialo on that date. Agent Dzialo's April 11 affidavit stated that conversations intercepted in the previous thirty days had revealed a widespread narcotics conspiracy involving at least twenty individuals, many of whom were not fully identified. The affidavit reviewed the pertinent conversations that had been intercepted and, once again, reviewed the reasons why electronic surveillance was necessary. Agent Dzialo averred that (1) physical surveillance of relevant locations was difficult because it attracted attention and raised the risk that the targets of the investigation might become alerted (April 11, 1990 Dzialo Aff., at P 114(a)-(c)); (2) the subjects of the investigation were particularly concerned about police activity, had referred to the presence of police, and appeared to be alert to the possibility of police surveillance (id.); (3) although helpful, pen registers and telephone toll records could not help the agents to identify the source of co-conspirator's heroin supply (id. at P 114(c)); and (4) the same concerns set forth in the initial wiretap application regarding the use of grand jury investigation, search warrants, undercover officers, and confidential informants continued to be relevant to the choice of investigative methods (id. at P 114(d)-(f)).

 Judge Pollack's November 6, 1990 wiretap order was issued on the basis of an affidavit sworn to by Agent Wittman on that date. Agent Wittman discussed the investigative techniques that had been used, and the need for further electronic surveillance, focusing on an alleged source of heroin. Agent Wittman (1) reviewed the use of physical surveillance during the investigation, and in particular discussed the use of this particular investigative technique in identifying an alleged heroin supplier (Wittman Aff., at PP 32-34, 107(a)); (2) described in detail the heroin supplier's efforts to conceal his identity from his customers, the futility of physical surveillance because of the supplier's awareness of surveillance and because the investigating agents had no knowledge of the supplier's address or place of business (id. at P 107(a)); (3) informed the court of the extensive use of toll records and pen registers in the case, and reported that the information gleaned from these techniques had not revealed the heroin supplier's residential or business telephone, and further use of these techniques was unlikely to do so (id. at P 107(d) & (e)); (4) stated that search warrants would be wanting because agents had no information concerning where the heroin supplier received, concealed, or distributed the narcotics he sold, or the proceeds thereof (Id. at P 107(d)); and (5) concluded that electronic surveillance was necessary in order to identify the heroin supplier and to discover the full extent of the narcotics trafficking of Justine Roberts and her alleged co-conspirators, to identify their suppliers, associates, and customers, and to discover how they disposed of their narcotics proceeds (id. at PP 108, 109).

 In sum, in each wiretap application in this investigation, the government explained to the issuing judge the investigative techniques that had been used, and why electronic surveillance was necessary. The affidavits made a sufficient showing of why other investigative techniques were unsuccessful or would have been unlikely to succeed. Accordingly, Love's motion to suppress for failure to establish the inadequacy of normal investigative techniques and the need for electronic surveillance is denied.

 B. The First Periodic Report

 Defendant next raises a novel argument for suppression. Love contends that the wiretap evidence must be suppressed because the First Periodic Report was reviewed by Judge Broderick, the Part I judge, rather than by the issuing judge. This argument is devoid of merit.

 As already discussed, Judge Sand issued the March 6, 1990 Order that authorized interception of communications over the telephone line used by Justine Roberts. In that Order, Judge Sand required the government to deliver "to the Court periodic reports at ten day intervals showing the progress that has been made toward achievement of the authorized objectives and the need for continued interception." (March 6, 1990 Order, at 6-7).

 The First Periodic Report was timely submitted to the court by the government on March 16, 1990. Because Judge Sand was unavailable, the First Periodic Report was referred to the Part I *fn1" judge, Judge Broderick. Judge Broderick reviewed and signed the First Periodic Report on March 16, 1990. Love avers that this procedure was improper because, according to Love, the March 6, 1990 Order and 18 U.S.C. § 2518(6) require that periodic reports be reviewed and signed by the issuing judge.

 Love's interpretation of the March 6, 1990 Order and 18 U.S.C. § 2518(6) is incorrect. The March 6, 1990 Order required only that periodic reports be delivered to the court. The government complied with this requirement, delivering the First Periodic Report to the court on the day that the report was due. The First Periodic Report was reviewed and signed by the Part I judge rather than by Judge Sand only because Judge Sand was unavailable to review it. The government thus complied with both the letter and spirit of the March 6, 1990 Order.

 II. EVIDENCE SEIZED BY PEN REGISTER DEVICES

 Love seeks suppression of all evidence seized by means of pen register devices. It is well settled that the use of pen register devices does not violate a defendant's expectation of privacy and therefore need not be authorized by a warrant based on probable cause. Smith v. Maryland, 442 U.S. 735, 739-46, 61 L. Ed. 2d 220, 99 S. Ct. 2577 (1979). Love argues, however, that because some pen register devices can be converted into listening devices, any evidence gathered in this case by means of a pen register device must be suppressed. Love relies on People v. Bialostok, 80 N.Y.2d 738, 742, 594 N.Y.S.2d 701, 610 N.E.2d 374 (1993), to support his argument.

 In Bialostok, the New York Court of Appeals held that, under provisions of the New York Criminal Procedure Law, pen register devices that are capable of being converted into listening devices may not be used without a warrant based on probable cause. The New York Court of Appeals found that evidence must be suppressed if obtained through the use of pen registers that are capable of being converted into listening devices, even where there is no evidence ...


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