The opinion of the court was delivered by: Robert P. Patterson, Jr., U.S.D.J.
On December 22, 2008, a grand jury sitting in the Southern District of New York returned an indictment charging Sergio Rodriguez, a/k/a "Tocayo," Rudy Mejia, and Eugenio Crisostomo, a/k/a "Rafi," a/k/a "Cuna," with conspiring to distribute and possess with intent to distribute over five kilograms of cocaine and a detectible amount of marijuana, in violation of Title 21, United States Code, Section 846 (the "Indictment"). Defendant Crisostomo was arrested by Special Agents of the Drug Enforcement Administration ("DEA") in the Southern District of New York on January 21, 2009, and Defendant Mejia was arrested in the Western District of Texas on January 20, 2009, subsequent to which he waived his Miranda rights and made several incriminating statements.
With this motion, Defendant Crisostomo has moved for the following pre-trial orders: (a) suppression of electronic surveillance communications obtained through court-authorized wiretaps of a cellular telephone used by one of his co-defendants (Defendant Rodriguez) and all evidence derived therefrom; (b) suppression of his statements and physical evidence gathered during a September 2007 traffic stop; (c) severance, pursuant to Bruton v. United States, 391 U.S. 123 (1968); (d) requiring the Government to disclose any Rule 404(b) evidence, and (e) requiring the Government to produce all Brady and Giglio material 60 days prior to the commencement of trial. Defendant Mejia has joined in Defendant Crisostomo's motions for: suppression of the Court authorized interceptions, for severance pursuant to Bruton, for disclosure of Rule 404(b) evidence, and for disclosure of Brady and Giglio material.*fn1
Oral argument on this motion was held on July 31, 2009, subsequent to which, the Court reserved decision. This opinion now follows. For the following reasons, Defendants' motion to suppress is denied, Defendants' motion for discovery is granted in part to the extent indicated, and Defendants' motion for severance is denied without prejudice to renew at a later date.
Beginning in December 2003, DEA agents commenced an investigation into a multi-kilogram cocaine trafficking organization operated by Ruben Gil and Martin Nelson-Garcia. (Govt. Ex. C [Affidavit of Special Agent Louis Maniacci in Support of the Wiretap Application, dated September 13, 2007 ("Maniacci Aff."), ¶¶30, 32]; Crisostomo Ex. B [same].) Over the next three years, wiretaps from this investigation revealed that Garcia and Gil were suppliers of multi-kilogram quantities of cocaine. (Id.) Based on this information, Arizona agents began investigating an arm of that drug trafficking organization which was located in Arizona, and which was being coordinated by Feliciano Ayala-Zamora ("Ayala") and Miguel Hernandez-Martinez. (Id.)
An investigation by Arizona DEA agents resulted in the seizure of a large amount of cash and cocaine, revealed that Gil and Garcia had lost trust in Ayala to distribute their cocaine, and further revealed that Ayala had begun to use Defendant Rodriguez as a source of supply for cocaine. (Id. ¶¶33-36.) Based on this information, from November 6, 2006 to May 2, 2007, an Arizona judge issued three separate 30-day orders authorizing the interception of wire communications over cellular telephones used by Ayala ("Ayala Phones"). (Id. ¶34.) A separate Arizona judge, from May 31, 2007 to July 19, 2007, signed two separate 30-day orders authorizing the interception of two cellular telephones being used by Hernandez-Martinez ("Hernandez-Martinez Phones"). (Id.)
While monitoring the Ayala and Hernandez-Martinez Phones in Arizona, DEA agents intercepted several telephone calls wherein Defendant Rodriguez discussed his role in various past and future narcotics transactions. (Id. ¶¶34-43.) These calls from/to Defendant Rodriguez were made from the assigned call number (656) 143-2857, which belonged to Defendant Rodriguez ("Tocayo Cellphone"). On June 29, 2007, Phoenix DEA arrested Hernandez-Martinez in possession of approximately 12 kilograms of cocaine. (Id. ¶34.) After that date, Defendant Rodriguez, using the Tocayo Cellphone, began contacting Ayala by telephone to arrange various narcotics deals. (Id. ¶¶34-43.)
On September 13, 2007, Louis Maniacci, a Special Agent working for the Phoenix DEA, in conjunction with the Maricopa County (Arizona) Attorney's Office, made an application for a wiretap (Maniacci Aff.) of the Tocayo Cellphone, which had the assigned call number (656) 143-2857. (Govt. Ex. C; Crisostomo Ex. B.) In support of this order, the Maricopa County's Attorneys' Office submitted an accompanying application, which provided further details on the target telephone. (Govt. Ex. D [Ex Parte Application of Andrew Thomas, dated September 13, 2007].) That same day, the Honorable Roland Steilne of the Superior County of Arizona issued an order authorizing the interception of communications on the Tocayo Cellphone for a period of thirty days ("September 13, 2007 Order"), from September 13, 2007 to October 12, 2007. (Crisostomo Ex. A [September 13, 2007 Order].) Defendant Rodriguez ("Tocayo"), along with a number of other co-conspirators, was listed as a "target" of the interceptions; neither Defendant Crisostomo nor Defendant Mejia were listed as targets on the wiretap application. (Id. at 1-2.)
From September 14 to September 17, 2007, just after Arizona agents began intercepting telephone calls on the Tocayo Cellphone, they learned from those interceptions that Defendants Crisostomo, Mejia and Rodriguez were coordinating a drug shipment from El Paso, Texas, via semi-tractor trailer, to the northeastern part of the United States. (Govt. Ex. E [Application and Affidavit for Search Warrant, Western District of Texas, dated September 18, 2007].) The semi-tractor trailer was to be driven by "CUNA LNU," who was later identified as Defendant Crisostomo. (Id.)
On the evening of September 17, 2007, based on information the "Phoenix DEA" had learned from monitoring the Tocayo Cellphone and had communicated to agents located in El Paso, Texas, Texas DEA commenced surveillance of the three defendants. (Id.). After several hours of surveillance, El Paso agents observed a commercial tractor trailer truck being driven on Highway 1-10 in El Paso by Defendant Crisostomo. (Id.)
The DEA agents pulled over Defendant Crisostomo's tractor trailer truck, asked him for identification, and also sought his consent to search the cabin and trailer of the truck. Defendant Crisostomo allegedly consented to the search, and the agents, using a K9, searched the cab of the truck.*fn2 (Id.) The K9 showed an interest, but did not positively respond for the presence of narcotics. (Id.) The "cursory search" of the tractor "produced negative results for narcotics," and a subsequent search of the attached trailer indicated that the trailer was empty. Defendant Crisostomo was not handcuffed or restrained during the search.
After this initial search, the agents asked Defendant Crisostomo whether he would allow them to x-ray the cabin and trailer of the truck, and Defendant Crisostomo allegedly gave his oral consent. (Id.) The truck was taken to a nearby border post by the DEA agents, where it was x-rayed; no narcotics were recovered. (Id.) After this was completed, the agents returned to the area where the initial stop was made, permitted Defendant Crisostomo to retrieve clothing and belongings from the truck, and then dropped him off at a nearby hotel. (Id.) The next morning, on September 18, 2007, Special Agent Cesar Hernandez applied for a search warrant to conduct a more thorough search of the truck (Govt. Ex. E), and a search warrant was issued by Magistrate Judge Michael McDonald. No narcotics were discovered during that subsequent search. During the traffic stop, Defendant Crisostomo made several statements to, or within earshot of, DEA officers, some of which were potentially incriminating. (Id.)
On November 2, 2007, United States District Judge Philip Martinez of the Western District of Texas authorized the continued interception of the Tocayo Cellphone after he received an application for renewal (Govt. Ex. G [Renewal Application I]) and a supporting affidavit sworn by Special Agent Matthew Sandberg of the DEA (Govt. Ex. F [Sandberg Aff. I].) On December 3, 2007, Judge Martinez re-authorized the continued interception of the Tocayo Cellphone, again after receiving an application for renewal (Govt. Ex. I [Renewal Application II]) and a supporting affidavit sworn by Agent Sandberg (Govt. Ex. H [Sandberg Aff. II].) And on January 2, 2008, Judge Martinez again re-authorized the continued interception of the Tocayo Cellphone after receiving an application for renewal (Govt. Ex. K [Renewal Application III]) and a supporting affidavit sworn by Special Agent Sandberg (Govt. Ex. J [Sandberg Aff. III].)
2. Defendants' Motion to Suppress the Electronic Surveillance Communications Derived from the September 13, 2007 Arizona Wiretap Application is Denied
Defendants Crisostomo and Mejia move to suppress the transcripts of the wiretap interception authorized by Arizona Superior Court Judge Roland Steilne on September 13, 2007, as well as all evidence derived therefrom, claiming that the issuance of the warrant by the Arizona judge was illegal and improper. (Crisostomo Memo ¶¶ 22-70.) Specifically, Defendants claim that: the Arizona court lacked jurisdiction to order the interception of the wiretap (Crisostomo Memo ¶¶22-36; Mejia Memo at 8-9); that the application for the warrant did not comply with the Arizona wiretap statute (Crisostomo Memo ¶¶36-43; Mejia Memo at 8); that the application for the wiretap warrant failed to set forth facts which properly alleged that normal investigative procedures have failed in the investigation for which authorization for wire interceptions were being required, in violation of 18 U.S.C. Section 2518(1)(c) (Crisostomo Memo ¶¶44-70), and; that the Government has failed to prove that the application to the Texas court for the wiretap was authorized by the Attorney General or his designee as required by 18 U.S.C. Section 2516(1). For the following reasons, Defendants' motion is denied.
A. Standing to Challenge the Title III Intercepts
As a threshold argument, the Government contends that none of the moving Defendants has standing to seek suppression of the intercepted oral communications. In order to have standing, a defendant must establish that he has a legitimate expectation of privacy that was violated by the Government's electronic surveillance. See United States v. Bianco, 998 F.2d 1112, 1122 (2d Cir. 1993); United States v. Montoya-Eschevarria, 892 F. Supp. 104, 106 (S.D.N.Y. 1995). Under Title III, only an "aggrieved person" may seek to suppress oral communications intercepted by the Government. See 18 U.S.C.A. 2518(10)(a) (West 2000); United States v. Fury, 554 F.2d 522, 525 (2d Cir. 1977). Title III defines an "aggrieved person" 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.A. § 2510(11) (West 2000); see also Bianco, 998 F.2d at 1122 (intercepted defendants have standing to challenge wiretaps); United States v. Caruso, 415 F. Supp. 847, 849-50 (S.D.N.Y. 1976) ("only those defendants whose conversations were intercepted or against whom the interception was directed, or on whose premises the conversations took place, may assert the unlawfulness of the interception").
Accordingly, there are two ways for a defendant to establish standing. First, a defendant can submit "sworn evidence, in the form of affidavit or testimony, from the defendant or someone with personal knowledge" establishing that it was the defendant's voice that was captured on the wiretap. Montoya-Eschevarria, 892 F. Supp. at 106; United States v. Bellomo, 954 F. Supp. 630, 639 (S.D.N.Y. 1997). Neither Defendant here has submitted such evidence. Second, defendants who are named targets or interceptees of a wiretap automatically have standing under Title III. See, e.g., United States v. Columbo, 2006 U.S. Dist. LEXIS 49255, *33-34 (S.D.N.Y. 2006); United States v. Labate, 2001 U.S. Dist. LEXIS 6509 (S.D.N.Y. 2001). The burden of establishing standing is on the party moving to suppress evidence. United States v. Osorio, 949 F.2d 38, 40 (2d Cir. 1991).
Counsel for Defendant Mejia states that he is an "aggrieved person" within the meaning of Title III because the "government alleges that he was a party to the communications intercepted by the government." (Mejia Memo at 6.) However, "the law is clear that the burden on the defendant to establish standing is met only by sworn evidence, in the form of affidavit or testimony, from the defendant or someone with personal knowledge. The defendant's unsworn assertion of the Government's representations does not meet this burden." Montoya-Eschevarria, 892 F. Supp. at 106 (rejecting same argument put forth here, i.e., that the government's representations that ...