The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge
REPORT, RECOMMENDATION AND ORDER
This case was referred to the undersigned by the Hon. Richard J. Arcara, in accordance with 28 U.S.C. § 636(b)(1), for all pretrial matters and to hear and report upon dispositive motions. Dkt. #3.
The defendant, Joseph Marble ("Marble"), along with nineteen others, is charged in a multi-count Superseding Indictment (Dkt. #296) with conspiracy to possess with intent to distribute cocaine and cocaine base and three counts of using a telephone to facilitate possession with intent to distribute and distribution of controlled substances. Presently pending are Marble's dispositive and non-dispositive motions with respect to the Superseding Indictment. Dkt. ##366. What follows is this Court's Report, Recommendation and Order with respect to Marble's motion to suppress wiretap evidence.*fn1 Defendant Marble's non-dispositive discovery motions will be addressed in a separate Decision and Order.
Defendant Marble and twenty-six others were charged in a Criminal Complaint on December 15, 2009 with cocaine-related drug trafficking offenses in violation of Title 21, United States Code, Sections 841(a)(1), 843(b) and 846. The Criminal Complaint, authorized by the undersigned, was supported by a 281-page affidavit of Federal Bureau of Investigation ("FBI") Special Agent Vanessa Paris alleging, inter alia, that six months of court-authorized intercepted telephone communications, controlled purchases, informant information and other evidence established the defendants' long-standing participation in the trafficking of multi-kilogram quantities of cocaine and cocaine base.
Defendant Marble was not among the ten defendants indicted by a Federal Grand Jury on June 29, 2010. As a result, the Criminal Complaint against Marble was dismissed as of June 30, 2010 pursuant to Rule 48(b) of the Federal Rules of Criminal Procedure. Defendant Marble was, however, among those twenty defendants indicted by a Federal Grand Jury on May 3, 2011 in the sealed Superseding Indictment. Dkt. #296. Following his July 14, 2011 arraignment, defendant Marble was released on bail. Defendant Marble filed pretrial motions on November 29, 2011 (Dkt. #366) and the government filed its opposition to Marble's pretrial motions on December 10, 2011 (Dkt. #381). Oral argument on defendant Marble's motions was held on December 14, 2011.
Motion to Suppress Wiretap Evidence
At issue here are the applications for the authorizations to intercept wire and electronic communications relating to three target telephones and an application for the authorization to continue to intercept wire communications. Each of the applications was accompanied by a lengthy affidavit from Federal Bureau of Investigation Special Agent Marcello Falconetti. In each of the affidavits, Special Agent Falconetti described in detail a narcotics distribution enterprise principally operated by Rodney Hill, David Manuel and Tyrone Pennick involving, inter alia, the financing and distribution of drugs. The factual allegations set forth in Special Agent Falconetti's affidavits were derived from his personal knowledge based upon his participation in the investigation, including surveillance of individuals and premises, as well as information provided to him by confidential human sources, and other federal and state law enforcement officers. Special Agent Falconetti iterates specific details of drug activity undertaken by Rodney Hill, David Manuel and Tyrone Pennick and others known and unknown to law enforcement.
Principally, defendant Marble asserts that the wiretap applications submitted to United States District Judge William M. Skretny failed to satisfy the necessity requirement. Dkt. #366, pp.58-67. In addition, defendant Marble argues that the investigative objective was attained "at the very least at the conclusion of the first Falconetti applications and order." Id. at pp.67-69. Finally, defendant Marble maintains that the time within which the government sealed the tapes of the intercepted wire and electronic communications was "not acceptable." Id. at pp.69-70.
In its response, the government asserts that the defendant's claim of a lack of necessity is not justified. Dkt. #381, pp.15-25. With respect to the defendant's assertion that the intercepted conversations were not sealed in a timely fashion, the government states it "needs to obtain further information to properly respond to defendant's motion." Id. at p.25. On March 15, 2012, this Court issued a Text Order (Dkt. #418) stating that it deemed the government's response concerning the sealing orders to be inadequate (Dkt. #381) and indicated that it had examined the sealing orders in question and found that sealing did not immediately occur in all instances. As a result, this Court ordered the government to "submit an in camera explanation of each delay no later that 5:00 p.m. on March 20, 2012." Dkt. #418. The government filed an affidavit on March 20, 2012 (Dkt. #425), however, it failed to comply with this Court's directive that it be filed under seal.
The first Title III Order authorizing the interception of wire communications over cellular telephone number 716-570-2108 used by David Manuel was issued on June 9, 2009 and assigned Miscellaneous Criminal Number 09-MR-54. According to the government, interception began on June 10, 2009 at 8:00 a.m. and consequently, as set forth in the Order, the authorization to intercept wire communications expired on July 10, 2009 at 8:00 a.m. Dkt. #425, ¶ 3. July 10, 2009 was a Friday and the sealing order was signed on Monday, July 13, 2009 by Chief Judge Skretny.
On July 24, 2009, the government sought the continued authorization to intercept wire communications and electronic communications over cellular telephone number 716-570-2108 used by David Manuel. Chief Judge Skretny issued an Order authorizing the continued interception on Friday, July 24, 2009 under Miscellaneous Criminal Number 09-MR-54. According to the government, interception did not begin until Monday, July 27, 2009 at 8:00 a.m. Dkt. #425, ¶ 4. As provided in Chief Judge Skretny's Order, the authorization to intercept wire and electronic communications was for a period of thirty (30) days measured from the earlier of (1) the date and time on which the investigative or law enforcement officers first began to conduct interception or (2) ten (10) days from the date and time after the order is entered, whichever is earlier. Here, interception began on July 27, 2009 at 8:00 a.m., therefore, absent an Order continuing the authorization, the interceptions were required to conclude on August 26, 2009 at 8:00 a.m. Id. By Order of Chief Judge Skretny, the recordings of the intercepted wire communications were sealed on Friday, August 28, 2009.
With respect to the interception of electronic communications over cellular telephone 716-570-2108 (09-MR-54), in his Affidavit filed March 20, 2012, counsel for the government states,
The interception of electronic communications was problematic, as discussed infra, due to the fact a different system had to be used for the communications capture and it was located at FBI Headquarters in Washington, DC. This first time use of this system caused technical difficulties and the information was not received from Headquarters in a timely manner, nor initially, in a readable format. In all, text communications were intercepted only for the period August 9, 200 [sic] to August 23, 2009, although the wire order did not expire until August 26, 2009. On September 4, 2009, FBI Headquarters downloaded the stored information to disc and mailed same to the Buffalo FBI office where it was received on September 8, 2009. The disc containing the intercepted text message information was sealed on February [sic] 21, 2009.
The third Order authorizing the interception of wire communications in this investigation was issued on September 1, 2009 for cellular telephone number 716-818-0680 used by Rodney Hill and assigned Miscellaneous Criminal Number 09-MR-78. According to the government, interception began on Wednesday, September 2, 2009 at 8:00 a.m. and although the Order did not expire until Friday, October 2, 2009, the last pertinent intercepted conversation was on September 24, 2009. Dkt. #425, ¶ 6. All monitoring of cellular telephone number 716-818-0680 ended on October 1, 2009 and the recordings were sealed that same day.
The fourth and final Order authorizing the interception of wire communications in this investigation was issued on November 5, 2009 and interception began that same day for cellular telephone number 716-846-5551 used by Rodney Hill and was assigned Miscellaneous Criminal Number 09-MR-97. The Order expired on Sunday, December 6, 2009. However, the recordings were not sealed until December 10, 2009. With respect to the delay in sealing, counsel for the government stated in his March 20, 2012 Affidavit, "[a]n inquiry with District Judge Skretny's Courtroom Deputy indicated that Judge Skretny did not have a calendar on Tuesday, 12/08/09 and Wednesday, 12/09/09, and therefore was not available for the disc to be sealed until 12/10/2009." Dkt. #425, ¶ 7.
Defendant Marble argues that "[m]ost of the factual assertions concerning the need for electronic eavesdropping contained in the Falconetti applications were merely generalized statements not relevant to the instant case or were otherwise obvious boiler plate utterances designed to mislead the issuing judge." Dkt. #366, pp.59-60. In addition, defendant Marble maintains that physical surveillance had already been used and "was more than successful. In that regard, as can be seen from the previous Falconetti applications, surveillance was utilized and potential targets were clearly developed based upon the utilization of physical surveillance." Id. at p.60. Moreover, defendant Marble, relying on the Second Circuit's decision in United States v. Concepcion, 579 F.3d 214 (2d Cir. 2009), argues that the case agent failed to explain the specific attempts at surveillance. Indeed, defendant Marble quotes the Second Circuit's decision in Concepcion as follows, "[b]ut we have been clear that part of the reason law enforcement performs physical surveillance is to identify co-conspirators. Once conspirators had been definitively identified, the Government could have sought an informant or introduced a different undercover agent." Id. at p.62 (emphasis in original). With respect to the investigation involved here, defendant Marble states, "[t]he Government had already identified many other individuals, had introduced informants to lead participants and, most remarkably, had allowed the informant to begin to infiltrate and to infiltrate the conspiracy. As the Second Circuit has recently cogently pointed [sic], the government could have attempted to introduce other informants to the conspiracy but inexplicably failed to do so." Id. Finally, defendant Marble asserts that "a clear reading of the applications indicate that the government chose to continue to apply for the wiretaps not because it was necessary, but because it was easier than beginning a new investigation." Id. at pp.62-63.
In his affidavits, Special Agent Falconetti enumerated multiple reasons why he believed that normal investigative procedures have been tried and have failed, reasonably appear unlikely to succeed if continued or tried or are too dangerous to employ in this investigation. Notwithstanding the foregoing, Special Agent Falconetti does acknowledge in his affidavits that some traditional investigative techniques, such as court-authorized pen registers, physical surveillance, telephone toll records, interviews, public records and information from confidential sources, had been probative as to the existence of an ongoing illegal narcotics business. However, the investigation had not yielded sufficient evidence or ascertained the identities of all participants and co-conspirators in the illegal conspiracy, as well as identified the sources of supply. In his affidavits, Special Agent Falconetti sets forth in detail each investigative technique used, what information was revealed and what information was still desired and unable to be ascertained through those investigative techniques. In addition to the foregoing investigative techniques employed during the investigation, Special Agent Falconetti explained that the following additional investigative techniques had been considered, but deemed not likely to succeed: convening a Federal Grand Jury, use of undercover agents, interviews of subjects and the execution of search warrants. Special Agent Falconetti further iterated that although the investigation generated substantial evidence against certain individuals, the full scope of the members of the Central Park Gang drug network had not been fully identified, nor had the extensive nature of the distribution cell, the method of drug supply, the means of financing the purchase of drugs, the locations where the drugs and proceeds are stored and the method of disposing of the drug proceeds been ascertained.
In the absence of the interception of wire communications, Special Agent Falconetti explained that it would be virtually impossible to know the time and locations of future crack cocaine and/or cocaine distributions and the locations of crack cocaine and/or cocaine in the possession of the conspirators for purposes of sale and distribution. Each of the applications at issue herein was based on affidavits ranging in length from seventy-one (71) to one hundred-three (103) typewritten pages wherein Special Agent Falconetti described in great detail the history of the investigation to date and information obtained based on use of the above-described investigative techniques, including what was ascertained in the preceding wire communication interceptions. Once again, the training and experience of the agent can be considered in the context of "necessity." United States v. Fama, 758 F.2d 834, 838 (2d Cir. 1985).
As a threshold matter, the Court notes that Title 18, United States Code, Section 2518(1)(c) requires that an application for electronic surveillance must include "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." Since the holding in United States v. Torres, 901 F.2d 205 (2d Cir.), cert. denied, 498 U.S. 906 (1990), addresses the issue raised by the defendant on ...