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U.S. v. MENENDEZ

June 8, 2005.

UNITED STATES OF AMERICA,
v.
RAMIRO MENENDEZ and ANGELO LISI, Defendants.



The opinion of the court was delivered by: DEBORAH BATTS, District Judge

MEMORANDUM & ORDER

Before the Court is Defendant Ramiro Menendez' ("Menendez") pre-trial motions seeking suppression of evidence discovered as a result of Title III wiretap intercepts, and physical evidence seized in two difference searches on the day of Menendez' arrest. In the alternative, Menendez seeks a hearing on his motions, pursuant to Rules 12 and 41 of the Federal Rules of Criminal Procedure. Defendant Angelo Lisi ("Lisi") joins in Menendez' motion to suppress evidence discovered as a result of the wiretap intercepts.

For the reasons that follow, Defendants Menendez' and Lisi's motion to suppress is DENIED.

  I. BACKGROUND

  Defendants Ramiro Menendez ("Menendez") and Angelo Lisi ("Lisi") were indicted by a federal grand jury on March 9, 2004 in a one-count indictment along with Co-Defendants Gustavo Sierra, Alberto Sierra, Vilma Bido, and Lawrence Russell. The Indictment charged Defendants with distributing and possessing with intent to distribute, one kilogram and more of heroin from at least in or about December, 2003 through in or about February, 2004 in violation of 21 U.S.C. § 846. The investigation leading to the Indictment included three separate interceptions of wire communications, authorized by Judge John F. Keenan, United States District Judge for the Southern District of New York.

  On April 27, 2004, the grand jury returned a Superceding Indictment, adding a second count charging Defendants and newly added Defendants Carlos Ekmeiro,*fn1 Paul Pacheco and Richard Solbavarro with a money laundering conspiracy in violation of 18 U.S.C. § 1956(h). The grand jury returned a Second Superceding Indictment on May 6, 2004, adding Defendants Ekmeiro, Pacheco and Solbavarro to Count One and a new defendant, Martha Cobis, to Counts One and Two. A Third Superceding Indictment was returned on May 18, 2004, adding Defendant Kenyi Diaz-Perez to Counts One and Two.

  Defendant Menendez has filed pre-trial motions for consideration by the Court. Defendant Lisi has joined in Menendez' motion to suppress the wire-tap evidence.

  II. DISCUSSION

  Menendez seeks suppression of wire tap evidence obtained through intereptions of his cellular phone ("Menendez Cellphone") and Defendant Gustavo Sierra's cellular phone ("Sierra Cellphone"). Defendant Lisi joins in this motion. Menendez also moves to suppress any evidence obtained by the Government in two separate searches which took place on February 20, 2004 in Miami, Florida. Defendants seek an evidentiary hearing on these issues.

  A. Suppression of Wiretap Evidence

  Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510, et seq., regulates the interception of wire, electronic and oral communications. The procedure for securing judicial authority to intercept communications is found in 18 U.S.C. § 2518. The applicant seeking to obtain judicial authorization for an interception must demonstrate that "there is probable cause that an individual is committing . . . a particular offense . . . [and that] normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or too dangerous." 28 U.S.C. § 2518(3). No part of the intercepted communications "may be received in evidence in any trial, hearing, or other proceeding . . . if the disclosure of that information would be in violation of [Title III]." 18 U.S.C. § 2515.

  Menendez seeks suppression of the wiretap evidence obtained from his cellphone and the Sierra cellphone based on the following: (1) the telephone conversations were allegedly not minimized in accordance with the statutory requirements; (2) the tapes of the telephone conversations were allegedly not sealed in accordance with 18 U.S.C. § 2518(8)(a); and (3) the interceptions were unlawful because the wiretap application failed to establish with specificity the unavailability of alternative investigative techniques. The Government opposes Menendez' motion.

  1. Standing to Challenge Title III Intercepts

  As a threshold matter, the Court will consider the issue of whether Defendants Menendez and Lisi have standing to bring their respective challenges to the wiretap evidence. The Government contends that Defendant Lisi lacks standing to challenge the minimization procedures on both Menendez and Sierra Cellphones and that Menendez lacks standing to challenge the minimization procedures used for calls intercepted through the wiretap on the Sierra Cellphone.

  Under Title III, only an "aggrieved person . . . may move to suppress the contents of any wire or oral communications intercepted pursuant to this chapter, or evidence derived therefrom. . . ." 18 U.S.C. § 2518(10(a). An "aggrieved person" is defined as "a person who was a party to any intercepted wire, oral or electronic communication or a person against whom the interception was directed." 18 U.S.C. § 2510(11). "Standing to challenge evidence obtained through the use of electronic surveillance techniques requires a showing by a defendant that his or her voice was heard on the wire or that his or ...


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