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UNITED STATES v. KING

November 7, 1997

UNITED STATES OF AMERICA, Plaintiff,
v.
CLAUDIUS KING, et. al., Defendants.



The opinion of the court was delivered by: POLLAK

 POLLAK, United States Magistrate Judge:

 FACTUAL BACKGROUND

 According to the May 8, 1997 affidavit of FBI Special Agent Thomas McNally, submitted in opposition to defendants' motions to suppress ("the May Affidavit"), the investigation into the activities of King, Coley, and the others originated as a result of an earlier investigation, which began in the spring of 1994, into a narcotics and money laundering operation run by James Piggot, a/k/a "Blue" ("Piggott") and Randy Hampton, a/k/a "Undie" ("Hampton") (hereafter, the "Piggot investigation"). During the course of the Piggott investigation, which included a wiretap authorized by the Honorable Louis Stanton, United States District Judge, Southern District of New York (the "Piggott Wire"), the government learned that Hampton, who ran a drug distribution operation in Brooklyn and Queens, regularly purchased cocaine from Piggott, who operated out of New York City and the Bronx. The government also intercepted several conversations on the Piggott Wire which indicated that individuals, identified as "Sha" and "Ro" or "RoRo," were being supplied with drugs by Hampton which were obtained from Piggot. At that time, "Sha" was believed to be Stanley Dowtin ("Dowtin"), and "Ro" or "RoRo" was believed to be King. *fn2" In addition to these intercepted conversations, a confidential informant, posing as a crack buyer, provided information regarding his dealings with King on November 21, 1994, and December 13, 1994, including purchases of crack cocaine from King.

 Thereafter, on January 11, 1995, the confidential informant introduced an undercover detective, posing as a potential buyer of crack cocaine, to King. Later, in January 1995, King provided a telephone number - - (718) 345-4456 (the "Coley Telephone") *fn3" - - which the undercover agent used on several occasions to contact King. On January 31, 1995, the undercover agent met with King and purchased two ounces of crack cocaine from King for $ 1,480.00. At that time, King stated that "he had to pay his supplier more." (McNally Aff., dated June 1, 1995 (the "June Aff."), P 15). Following this purchase, the undercover agent spoke again to King over the Coley Telephone regarding the possible purchase of handguns. (Id. P 16).

 On June 1, 1995, the government obtained authorization from Judge Stanton to intercept and record the wire and oral communications of King, Jakes, Dowtin, Valerie Brooks, and others over the Coley Telephone, which was subscribed to in the name of Maureen Price, located at 230 Lott Avenue, Apartment 4F, Brooklyn, New York. This address was later identified as Coley's address and the Coley Telephone was identified as Coley's telephone number. The June 1, 1995 affidavit of Agent McNally, which was submitted to Judge Stanton in support of the wiretap authorization (the "June Affidavit"), set forth in detail information regarding King's dealings with the undercover agent and the confidential informant, as well as a description of other meetings and conversations between King and the agent or the informant over the Coley Telephone. The June Affidavit also contained a description of the conversations intercepted over the Piggott Wire and information obtained from a pen register on the Coley Telephone during the period February 22, 1995 to May 25, 1995. Specifically, the pen register showed forty-seven calls to King's pager number, and 102 calls to the telephone number at the address listed by King as his residence on his driver's license. In addition, the affidavit set forth an analysis of the remaining 2,169 calls registered during that time, which included calls to several individuals arrested or wanted for robbery or narcotics trafficking.

 On June 30, 1995, the government sought and obtained an extension of the authorization to intercept calls over the Coley Telephone, including the conversations of Coley, Coley's mother, Catherine Coley, Jackson, and Ward, who had been identified during the wiretap investigation.

 Thereafter, on August 1, 1995, the government sought and obtained authorization *fn4" to intercept calls over telephone number (718) 629-4120, which was King's phone (the "King Telephone"). In the August 1, 1995 affidavit of Agent McNally, submitted in support of the wiretap on the King Phone (the "August Affidavit"), Agent McNally summarized much of the information set forth in his two earlier affidavits in support of the Coley phone wiretap and attached them as exhibits to the application for authorization to intercept calls over the King Telephone. The August Affidavit explains that in May 1995, the informant, who had received King's phone number from King's girlfriend, attempted to contact King over the King Telephone, only to be told by King not to call him there. Nevertheless, based on calls subsequently intercepted over the Coley Telephone, it was determined that King was in fact using the King Telephone for narcotics activities. The August Affidavit then set forth specific examples of calls intercepted over the Coley Telephone from King's Telephone beginning on June 2, 1995 through July 19, 1995. In setting forth these summaries of calls, Agent McNally noted that based on his experience and expertise, the individuals were using what he believed to be various coded references to narcotics, including "things," "ones," "shit," "stuff," "something," "it," "gloves," "brother," "mixture," and "bags." A review of the calls also indicated references to other unidentified individuals, including "Bald Head," later identified as Kenny Clark, "Bo," "Hermena," "Crystal LNU," "Fifi LNU," "Hollywood," "Lulu LNU," later identified as Althea Pierce, "Mary LNU," "Diane LNU," "Darnell LNU," and "Monkey LNU," among others. Based on the description of the intercepted conversations, many of these individuals appeared to be associated with the narcotics conspiracy.

 The August Affidavit further explained that a pen register had been installed on the King Telephone beginning on July 6, 1995. During a period of less than two weeks -- July 6 through July 18, 1995 -- the pen register showed a total of 434 calls over the King Telephone, averaging approximately thirty-three calls a day, of which approximately forty-three went to pagers. Six calls were placed to a phone number subscribed to by Gertrude Alexander, which King had called on several occasions over the Coley Telephone when narcotics-related conversations had occurred. The analysis of the toll records further showed calls to an individual previously convicted of the criminal possession and sale of marijuana.

 On February 6, 1996, the government obtained an indictment in the Southern District of New York, charging the defendants, including King, Jackson, and Coley, with conspiracy to distribute and possess with intent to distribute in excess of fifty grams of crack cocaine between March 1994 and January 24, 1996. King, who was in state custody at the time, was brought to the district on February 15, 1996.

 On September 16, 1996, the government obtained a nine count indictment in the Eastern District of New York, charging King, Jackson, Rice, Jakes, and Coley with conspiracy to distribute cocaine base between November 1994 and January 24, 1996. On October 7, 1996, an order of nolle prosequi was entered in the Southern District of New York with respect to defendants King, Jackson, Rice, Jakes, and Coley in that district. *fn5" Jakes and Rice subsequently pleaded guilty in this district but charges remain pending against King, Coley, and Jackson.

 Defendant King moves to suppress the fruits of the wiretaps on both the Coley Telephone and the King Telephone, claiming: 1) that the government failed to comply with the requirements of Title III regarding the use of alternative investigative means; 2) that the affidavits submitted with the wiretap application contained allegedly material misstatements and omissions; and 3) that the government failed to adequately minimize the conversations intercepted over the King phone.

 Defendant Coley moves to suppress the wiretap evidence on the same theories raised by King, and to suppress certain post-arrest statements on the grounds that her Miranda waiver was not knowing and voluntary. She also seeks an order directing the government to provide evidence pursuant to Rule 404(b) of the Federal Rules of Evidence.

 Defendant Jackson adopts the positions of Coley with respect to the suppression of the wiretap evidence, and also seeks suppression of certain physical evidence, arguing that it is the fruits of an alleged improper wiretap. Finally, Jackson seeks production of certain discovery materials.

 DISCUSSION

 Alternative Means

 Defendants argue that the wiretaps should be suppressed because the initial Title III application failed to provide the requisite "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." 18 U.S.C. § 2518(1)(c). This requirement is a critical one, designed to ensure that "wiretapping is not resorted to in situations where traditional investigative techniques would suffice to expose the crime." United States v. Kahn, 415 U.S. 143, 153 n.12, 39 L. Ed. 2d 225, 94 S. Ct. 977 (1974); see also United States v. Robinson, 225 U.S. App. D.C. 282, 698 F.2d 448, 452-53 (D.C. Cir. 1983); United States v. Williams, 188 U.S. App. D.C. 315, 580 F.2d 578, 587 (D.C. Cir.), cert. denied, 439 U.S. 832 (1978). In requiring the government to show necessity in order to overcome the presumption in the statute against wiretapping, the courts have examined wiretap applications to determine whether the government has "alleged specific circumstances that render normal investigative techniques particularly ineffective." United States v. Ippolito, 774 F.2d 1482, 1486 (9th Cir. 1985). General allegations as to why a specific class of cases is difficult to investigate are not sufficient: "the affidavit must show with specificity why in this particular investigation ordinary means of investigation will fail." Id. (citing United States v. Robinson, 698 F.2d at 453).

 On the other hand, the cases make it clear that the government "need not exhaust all conceivable alternative procedures before resorting to a wiretap." United States v. Ippolito, 774 F.2d at 1485. Rather, the government must show that "'normal investigative techniques employing a normal amount of resources have failed to make the case within a reasonable period of time.'" Id. (quoting United States v. Spagnuolo, 549 F.2d 705, 710 (9th Cir. 1977)). Among the techniques considered by Congress are "'standard visual or aural surveillance [by law enforcement officers,] general questioning or interrogation under an immunity grant, use of regular search warrants, and the infiltration of conspiratorial groups by undercover agents or informants.'" United States v. Lilla, 699 F.2d 99, 103 n.5 (quoting S. Rep. No. 1097, 90th Cong., 2d Sess. 101, reprinted in 1968 U.S. Code Cong. & Ad. News 2112, 2190).

 Finally, and related to their second argument, defendants argue that information sufficient to indict the defendants was obtainable through traditional, non-wiretap methods, which the government had already pursued successfully. Defendants contend that with respect to the use of pen registers, the affidavits demonstrate that rather than being of limited value, the pen register had provided useful information regarding the phone activity. They also contend that the government ignored the numerous consensual recordings involving the informant and the undercover agent and did not mention their successful use in the alternative means section of the affidavit. Thus, defendants argue that several alternative investigatory techniques were available here, but the government chose the "shortcut" of wiretapping. (Id. at 24). Given the government's alleged "perfunctory" treatment of the most commonly used investigatory procedures (id.), defendants argue that suppression of the fruits of the wiretaps is warranted.

 1) The Affidavits' Specificity

 This Court does not agree with defendants' arguments. Turning first to defendants' claim that the alternative means section "merely recanted ritualistic recitations of the unfeasibility of alternative investigative means," a review of the alternative means section of each of Agent McNally's affidavits demonstrates that the government in this case provided more than just a generalized statement as to why ordinary investigative techniques would fail. In the alternative means section of each affidavit, Agent McNally recited in some detail why each of the alternative techniques would fail, and while many of the arguments made first in the June Affidavit are repeated in the August Affidavit, the August Affidavit also provided additional information gleaned from the Coley intercepts as well as provided reasons unique to the King Telephone.

 a. Physical Surveillance

 With respect to physical surveillance, the June Affidavit acknowledged that physical surveillance had been conducted and generally "is useful mainly in placing two individuals together," but that surveillance itself "provides limited direct evidence of the significance of the meeting." (June Aff. P 22(a)). The June Affidavit further set forth the fact that the wiretaps would not only assist the agents in establishing the roles of the various members of the conspiracy -- something surveillance could not do -- but would also provide information regarding the nature of their activities and the locations of physical evidence. Monitoring of the targets' telephone would also allow the agents to establish physical surveillance in advance of any meeting, thus reducing the likelihood of detection which could, in this case, endanger the life of the informant or result in a temporary stop or a change in the methods of the targets' activities.

 The June Affidavit further explained that electronic surveillance would provide evidence of the dealings between the target subjects and other conspirators as well. With respect to problems with physical surveillance, the August Affidavit detailed the fact that over the Coley phone, the government had learned that King's organization employed people on the roof with walkie talkies and children on bicycles to act as lookouts for law enforcement in the vicinity of Coley's residence. The August Affidavit also indicated that due to the location of King's residence in a ...


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