The opinion of the court was delivered by: Dora L. Irizarry, United States District Judge
The instant action arises out of a multi-defendant indictment alleging a narcotics trafficking conspiracy that involved, among others, three officers with the New York City Police Department ("NYPD"). Defendant Luis M. Batista, a member of the NYPD, is charged with (i) conspiracy to distribute cocaine base ("crack"), cocaine, and ecstasy in violation of 21 U.S.C. § 841(a)(1), (ii) conspiracy to commit bank fraud in violation of 18 U.S.C. § 1344, (iii) bank fraud in violation of 18 U.S.C. § 1344, and (iv) two counts of conspiracy to obstruct justice in violation of 18 U.S.C. § 1512(c)(2). (See generally Superseding Indictment S-5 ("S-5"), Docket Entry No. 91.)
Batista has moved to suppress evidence obtained pursuant to a wiretap of his phone, which was authorized on December 5, 2006 by the Honorable Allyne R. Ross, United States District Judge of this court (the "Batista Wiretap"). Batista contends that, contrary to the requirements of 18 U.S.C. § 2518, the affidavit of the case agent, Federal Bureau of Investigation ("FBI") Agent John Nefzger ("Nefzger Affidavit"), shows that the government failed to exhaust alternative investigative techniques prior to seeking the wiretap. Batista also seeks a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978) asserting that the Nefzger Affidavit contained material misrepresentations and omissions rendering the authorization void for lack of probable cause. (See generally Def. Mot. to Supp., Docket Entry No. 86.) Finally, Batista seeks an order compelling the government to provide a bill of particulars and additional discovery. The government opposed Defendant's motion in its entirety. (See generally Gov't Opp., Docket Entry No. 112.) On March 6, 2009, the court held oral argument on the issue of whether a Franks hearing is necessary to resolve Batista's motion. For the reasons set forth more fully below, Batista's motion is denied in its entirety.
For purposes of this opinion, the following facts are considered undisputed by the parties,*fn1 and are taken from the Nefzger Affidavit.
Batista joined the NYPD in 1997. He rose to the level of detective in 2004, and was assigned to the 90th Precinct Detective Squad in Brooklyn. (Nefzger Aff. ¶ 4; S-5 ¶ 3.) At the 90th Precinct, he did not conduct narcotics-related investigations. (Nefzger Aff. ¶ 15.)
In April 2006, the government indicted Virgilio Hiciano, who is one of Batista's co-defendants, on narcotics-related charges. (Nefzger Aff. ¶ 18; S-5 ¶ 6.) In post-arrest statements, Hiciano admitted that he was involved with narcotics trafficking. Additionally, he indicated that he had known Batista for fourteen years and that Batista was aware of his drug trafficking activities. (Nefzger Aff. ¶¶ 21, 26.) In June 2006, Hiciano fled the United States to live in the Dominican Republic. (Nefzger Aff. ¶ 127.)
Shortly thereafter, the government arrested co-defendant Alexander Alcantara (who is described as "Confidential Informant" or "CI" in the Nefzger Affidavit) on narcotics-related charges. (Nefzger Aff. ¶ 28.) In a post-arrest statement, Alcantara stated that Hiciano was his best customer, and that Hiciano had introduced him to Batista. (Nefzger Aff. ¶ 29.) Alcantara described two incidents of interest to the government. First, on one occasion, Hiciano lent his car to Batista, who inadvertently left his firearm in the car and had to retrieve it from Hiciano. (Id.) Second, on one occasion, Hiciano received a call from an unspecified telephone number. He spoke with the caller and then told Alcantara that it was Batista who had called to warn him of an impending NYPD drug raid at one of his drug locations. (Nefzger Aff. ¶ 31.)
The government then arrested Luis Calderon (who is described as "CW-1" in the Nefzger Affidavit) on narcotics-related charges and indicted him separately. (Nefzger Aff. ¶ 32.) In a post-arrest statement, Calderon admitted that he worked with Hiciano to distribute cocaine. (Nefzger Aff. ¶ 33.) He indicated that Batista frequently went to bars with Hiciano. (Nefzger Aff. ¶ 36.) Additionally, he stated that he was present on occasions when Hiciano and Batista spoke on the phone. (Id.)
Calderon agreed to cooperate and placed a consensually-recorded telephone call to Batista on November 1, 2006. Batista asked Calderon to come to the station house of the 90th Precinct, where Batista was on duty at the time of the call. (Nefzger Aff. ¶ 38.) Batista and Calderon spoke at the station house. During their conversation, Calderon informed Batista that he had been arrested and expressed concern that Hiciano might be cooperating with the government. (Id.) Batista responded by stating:
Checko*fn2 is in the Dominican Republic. In order for a person to talk they have to be here, not in another country. And I am sure he is in the Dominican Republic.
For someone to talk they have to be in this country. And if they are offering protection they have to be here. To be out of the country they have no access to you. If you are out of the country, how will they prosecute you? Nobody, never. He is not talking. (Nefzger Aff. ¶ 39.) Notably, at the time of this conversation, Hiciano was a federal fugitive, for whom a judge from this court had issued a bench warrant. (Nefzger Aff. ¶ 27.)
Shortly after meeting, Batista approached Sergeant Robert Kelly, his supervisor, to find out whether the NYPD's Internal Affairs Bureau ("IAB") was investigating him. (Nefzger Aff. ¶ 27.) In a later conversation, Batista told Kelly that one of his friends in IAB told him that IAB was investigating him. Batista discussed detailed information contained in confidential, secure IAB records, including that an informant told the police that Batista shared a woman, sexually, with two other men, with drugs present during the sexual encounter. (Nefzger Aff. ¶¶ 42-44.) He then pressed Kelly as to whether there had been any further activity in his IAB file.
Additionally, around this same time, a joint task force comprised of the New York City Special Narcotics Prosecutor's Office, the NYPD, and the Drug Enforcement Administration ("DEA") were investigating Juan Aracena, a known drug trafficker. The task force applied for wiretap authorization from a state court, which it received ("Aracena Wiretap"). A review of conversations intercepted on Aracena's telephone line indicated that Batista spoke with Aracena on three occasions.
Based on the Nefzger Affidavit, Judge Ross authorized the Batista Wiretap. Batista contends that the evidence obtained must be suppressed. First, he contends that adequate, alternative investigative techniques were available, rendering the wiretap unnecessary. Thus, granting the application under these circumstances violated 18 U.S.C. § 2518, which now requires suppression. Second, he contends that the Nefzger Affidavit contains material misrepresentations and omissions in violation of Franks v. Delaware, 438 U.S. 154 (1978) and he seeks a Franks hearing to determine whether the evidence should be suppressed on this ground. Finally, Batista seeks a bill of particulars with respect to Count One of the indictment as well as additional discovery from the government.
I. Alternative Investigative Techniques
An application for wiretap authorization must provide "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 . . . ." 18 U.S.C. § 2518(1)(c). A judge reviewing an application for authorization of a wiretap must find that "normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed or to be too dangerous . . . ." 18 U.S.C. § 2518(3)(c). This requirement was 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 (1974). The Second Circuit has made it clear, however, that "there is no requirement that any particular investigation procedures be exhausted before a wiretap may be authorized." United States v. Young, 822 F.2d 1234, 1237 (2d Cir. 1987) (internal quotation marks omitted).
In his affidavit, Agent Nefzger described the investigative techniques the government had already employed and explained why a wiretap was required. (Nefzger Aff. ¶¶ 51-63.) Several techniques failed. First, Agent Nefzger indicated that, on approximately ten occasions, investigators unsuccessfully attempted physical surveillance of Batista. (Nefzger Aff. ¶ 53.) They attribute their lack of success to the fact that Batista was aware of the IAB investigation and that, as a police officer, he was trained in surveillance techniques. (Id.) The government also attempted, unsuccessfully, to place a global positioning system ("GPS") tracking device on his vehicle. Unfortunately, due to the parking situation at Batista's home, the investigators were unable to place the device on his car for fear of discovery. (Nefzger Aff. ¶ 54.)
The government had some success with consensually recorded conversations between Batista and his supervisor, Sergeant Kelly, and between Batista and a cooperating witness. These conversations provided useful information, but not enough information to charge Batista. (Nefzger Aff. ¶¶ 55-56.) The government also obtained some information from pen registers, telephone toll analysis, and reviews of Batista's financial statements; however, these methods failed to provide the government with sufficient evidence to charge him. (Nefzger Aff. ¶¶ 61-62.)
Agent Nefzger also explained why numerous other techniques would not work. He indicated that, grand jury subpoenas, undercover agents, interviews with coconspirators, and search warrants of certain premises would not provide sufficient information and might jeopardize the investigation of Batista and other co-conspirators. (Nefzger Aff. ¶¶ 57-62.)
Defendant contends that, prior to seeking the wiretap authorization, the government should have used additional confidential informants, electronic surveillance, pole cameras, roving or stationary surveillance, GPS tracking devices, and additional review of financial statements. (Def. Mem. 20.) In particular, defendant asserts that, the government should have relied more heavily on consensually recorded conversations between Batista and his supervisor, Sergeant Kelly and the use of the confidential informant. (Def. Mem. 21-24.) Defendant attached an affidavit from Gregory B. Salazar, a retired Senior Special Agent with the DEA in support of this contention. (See generally Salazar Aff.) Salazar asserts that the government had numerous investigative ...