The opinion of the court was delivered by: Denise Cote, District Judge
This Opinion confronts an error by the Government that infected more than a dozen federal wiretap applications. The Government consistently misidentified the controlled substance which it asserted the targets of surveillance were importing and distributing. It described the controlled substance as khat. Khat is not a controlled substance but cathinone, one of its constituent elements, is a Schedule I controlled substance.
The defendants move to suppress all of the electronic surveillance evidence in this case, and its fruits, on the ground that they were obtained in violation of 18 U.S.C. § 2518 and the Fourth Amendment. In the alternative, they request a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978). For the following reasons, the motion is denied.
Forty-four defendants were indicted in this action for conspiring to distribute cathinone, a Schedule I controlled substance, and related charges.*fn1 The motion to dismiss the Indictment has been denied, United States v. Muse, No. 06 Cr. 600, 2007 WL 391563 (S.D.N.Y. Jan. 30, 2007) ("January Opinion"), and trial is scheduled to begin on June 4, 2007.
Through thirteen court-authorized wiretaps, the Government recorded conversations of the defendants. It hopes to rely on these recorded conversations at trial. The first wiretap order was entered in September 2005, and the most recent was entered in July 2006. Most of the wiretaps were conducted pursuant to authorization given by judges sitting in this district, but there were two wiretap orders issued as well in the Eastern District of New York and one in the Western District of Washington.
The affidavit dated February 7, 2006, supporting the first wiretap approved in this district, contains each of the principal infirmities on which this motion is premised. A description of this single affidavit tendered in support of the application for court authorization of the electronic surveillance will therefore suffice to present the framework for the defendants' attack on all of the wiretap evidence.
The affiant, a Special Agent with the Drug Enforcement Administration, explained that he was seeking authorization to intercept and record wire communications concerning offenses involving the importation of, distribution of, and possession with intent to distribute of, controlled substances, the use of wire facilities to facilitate the same, conspiracy to do the same and attempts to do the same, in violation of 21 U.S.C. §§ 841, 843(b) and 846; and laundering the proceeds of narcotics trafficking; conspiracy to do the same; and attempts to do the same, in violation of Title 18, United States Code, Sections 1956 and 1957.
(Emphasis supplied.) These were described as the "Target Offenses." Certain individuals were identified as the "Target Subjects" of the wiretap.
In the section of the affidavit that described the probable case to believe that the target telephone would be used to further the Target Offenses, the affidavit identified the controlled substance. It explained that "since September 2005, the investigation has uncovered that the Target Subjects have been importing and distributing large quantities of khat -- a controlled substance that is widely used in Middle Eastern countries and by people of Middle Eastern descent within the United States."
In support of a finding of probable cause, the affiant reported that law enforcement officers had "seized" bags which were "later determined to contain nine bundles of khat, a controlled substance." Specific individuals were described as "khat distributors," and conversations were interpreted as having coded references to "fresh, high-quality khat." The conversations were described as referring to arriving shipments of khat, and to chewing khat. The affiant's analysis of toll records led him to believe that certain individuals were using a target cell phone "in furtherance of the Target Subjects' narcotics trafficking activities, by coordinating the delivery of khat." The affidavit explained that "the principal goals of this continuing investigation are to identify and develop evidence against not only the currently identified Target Subjects, but also all of their suppliers, customers and associates, as well as the locations at which the Target Subjects store narcotics and the methods by which they operate their narcotics trafficking business." (Emphasis supplied.)
As the January Opinion explained, khat is a plant that is grown in the Horn of Africa. Its leaves are chewed for their stimulant effect by residents of and immigrants from that part of the world. January Opinion, 2007 WL 391563, at *1. While khat is not a controlled substance, it contains a Schedule I controlled substance, cathinone. Id. at *3. Cathinone degrades rapidly after the khat plant is harvested, and by the time the khat leaves arrive in this country for distribution to immigrant communities, there is little likelihood that cathinone is present in any appreciable quantity or that it can contribute much if at all to any stimulant effect that the plant retains. Id. at *4.
The January Opinion denied the motion to dismiss, which was premised in part on the theory that the Government was required to show that sufficient cathinone remained in the khat leaves during distribution in the United States to cause a stimulant effect. Id. at *7-8. The Opinion held that the crime of conspiring to distribute khat required the Government to show that a "defendant knew that the aim of the conspiracy was to distribute 'some controlled substance.'" Id. at *4. It also held that the Indictment did not need to charge that the defendants conspired to distribute or import any particular quantity of cathinone. Id. at *6-*9. The defendants had argued that the Indictment was required to charge them with conspiring to distribute a marketable or usable quantity of cathinone, and that a charge based on the presence of any "detectable amount" of cathinone was insufficient. Id. at *5. Similarly, the January Opinion ...