United States District Court, N.D. New York
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FOR THE UNITED STATES: RICHARD D. BELLISS, GWENDOLYN E. CARROLL, Assistant U.S. Attorneys, OF COUNSEL, HON. RICHARD S. HARTUNIAN, United States Attorney, Albany, New York.
Joshua G. Stegemann, DEFENDANT, Pro se, Lake George, NY.
FOR THE DEFENDANT: ELIZABETH J. QUIGLEY, ESQ., OF COUNSEL, Office of Elizabeth J. Quigley, Pittsfield, MA.
MEMORANDUM-DECISION AND ORDER
Gary L. Sharpe, Chief United States District Judge.
Defendant Joshua G. Stegemann has been charged, in a three-count indictment, with possession with intent to distribute controlled substances, see 21 U.S.C. § 841(a)(1), possession of firearms in furtherance of a drug trafficking crime, see 18 U.S.C. § 924(c)(1)(A), and possession of firearms and ammunition by a prohibited person, see id. § 922(g)(1). (Dkt. No. 10.) Pending are Stegemann's motions for: a discovery order, (Dkt. No. 18); a Franks  hearing, (Dkt. No. 32, Attach. 2; Dkt. No. 37); suppression of evidence, (Dkt. No. 32, Attachs. 1, 4, 5, 6; Dkt. No. 37; Dkt. No. 44; Dkt. No. 55), and dismissal of count two of the indictment, (Dkt. No. 32, Attach. 3). For the reasons that follow, an evidentiary hearing is necessary on at least one narrow issue involving the suppression
of certain telephone calls, and their derivative use, intercepted while Stegemann was incarcerated in Rensselaer County Jail. To the extent that Stegemann's motions do not rely on the issue to be examined at the hearing or other unresolved issues, as noted below, they are denied.
The relevant facts are predicated on the court's evaluation of the following: the applicable burden of proof, see United States v. Miller, 382 F.Supp.2d 350, 361-62 (N.D.N.Y. 2005); the affidavits of record, (Dkt. No. 32, Attach. 1 at 4; Dkt. No. 47, Attachs. 1-4), including those of Stegemann, (Dkt. No. 32, Attach. 1 at 5-6; Dkt. No. 32, Attach. 7; Dkt. No. 37, Attach. 43; Dkt. No. 54 at 11-15); the various exhibits in the record, ( see, e.g., Dkt. No. 37, Attachs. 1-45; Dkt. No. 47, Attachs. 5-22); and the parties' submissions, (Dkt. No. 32, Attachs. 1-6; Dkt. No. 37; Dkt. No. 44; Dkt. No. 47; Dkt. No. 54; Dkt. No. 55; Dkt. No. 56; Dkt. No. 59). See Fed. R. Crim. P. 12(d). While the court is unable to readily resolve disputed issues of fact in the absence of an evidentiary hearing, generally speaking, the unsupported, speculative, self-serving, and conclusory assertions related through Stegemann's affidavits are discredited. See United States v. Martinez, 992 F.Supp.2d 322, 2014 WL 211476, at *2 (S.D.N.Y. 2014) (" [W]hen the allegations contained in . . . an affidavit [filed in support of a motion to suppress] are general and conclusory, an evidentiary hearing is unnecessary." (internal quotation marks and citations omitted)).
At the outset, it is noted that Stegemann is intimately familiar with the criminal justice system. In fact, he has previously been convicted of multiple drug-related offenses in the state of Massachusetts. (Dkt. No. 47, Attach. 5.) As the investigation that led to the pending charges revealed, Stegemann has developed countersurveillance methods to avoid detection by police, including the short-term use of multiple cellular telephones, each of which he uses for only a brief period of time, and use of several different automobiles. ( See, e.g., Original Application ¶ 51, Dkt. No. 37, Attach. 2.) For this reason, it was " imperative [for police] to monitor the oral communications of a member within the inner circle of Stegemann's drug dealing network," which " would reveal the phone numbers utilized by Stegemann at all times." ( Id.)
The investigation that led to Stegemann's arrest begins with James Cantarella (hereinafter " J. Cantarella" ). As of May 2012, police had collected evidence that gave them reason to believe that J. Cantarella was a member of a large narcotics trafficking conspiracy. (Scott Aff. ¶ 6, Dkt. No. 47, Attach. 1.) In particular, police believed that J. Cantarella was a mid-level drug dealer, who depended on large-scale dealers to meet his supply needs. ( Id.) On March 12, 2013, Massachusetts State Trooper William Scott and City of Pittsfield, Massachusetts, Police Department Investigator Tyrone Price, both members of the Berkshire County Drug Task Force (BCDTF), based out of Berkshire County, Massachusetts, applied for a wiretap warrant under Massachusetts General Laws Chapter 272, § 99 to intercept oral communications over two cellular telephones used by J. Cantarella with telephone numbers 413-441-8174 and 413-770-6568. ( Id. ¶ ¶ 1, 9; Original Application ¶ ¶ 1, 7-8.) As recited in the original wiretap application, " [t]he ultimate goal of th[e] investigation w[as] to reveal the scope of the [drug distribution] conspiracy including the source of supply as well as the subordinates and customers to this organization." (Original Application ¶ 1.) It was further asserted by Trooper Scott
and Investigator Price that there was probable cause to believe that Stegemann was " a source of supply" to J. Cantarella. ( Id. ¶ 2.) Several other individuals, including Matthieu Cantarella (hereinafter " M. Cantarella" ), J. Cantarella's brother, were believed to be involved in the drug trafficking conspiracy. ( Id. ¶ ¶ 23, 43(D).) Massachusetts Superior Court Justice John Agostini issued a wiretap warrant for J. Cantarella's 8174 and 6568 telephone numbers the same day that the application for it was filed. (Dkt. No. 37, Attach. 1 at 16-22.)
Following Justice Agostini's approval of the request to tap J. Cantarella's target telephones 8174 and 6568, members of BCDTF began intercepting his communications over those numbers . (Addendum A ¶ ¶ 25-30, Dkt. No. 37, Attach. 16 at 18-62.) Among other things, members of BCDTF intercepted communications between J. Cantarella and Dennis Hall wherein the two planned a robbery. ( Id. ¶ 30.) On March 16, 2013, officers arrested J. Cantarella and Hall at the location where they planned to carry out the robbery they discussed over one of the target telephones. ( Id. ¶ ¶ 31-34.) Each of the men had a cellular telephone in his possession at the time of the arrest. ( Id. ¶ 35.) In Addendum A, a follow-up application presented to Justice Agostini, dated March 17, 2013, Trooper Scott and Investigator Price requested two search warrants authorizing them to search the seized telephones, and Justice Agostini issued warrants authorizing them to do so. ( Id. ¶ 39; Dkt. No. 37, Attach. 16 at 2, 14.)
At some point prior to March 2013, members of BCDTF advised members of the Rensselaer County Drug Task Force (RCDTF), a sister task force in Rensselaer County, New York, that they believed that Stegemann was trafficking narcotics in and around Berkshire County, Massachusetts, and that they also believed that his Stephentown, New York, residence, located at 138 Losty Road, was the base of his illegal operation. (Scott Aff. ¶ ¶ 4, 14.) The exchange of such information is customary and routine generally where narcotics trafficking investigations are concerned, but, in particular, BCDTF and RCDTF " frequently coordinate" given each's close proximity to the New York-Massachusetts border. ( Id. ¶ 4; Hyde Aff. ¶ 4, Dkt. No. 47, Attach. 2.) In connection with the information provided by BCDTF, RCDTF conducted aerial surveillance of Stegemann on five separate occasions yielding high definition video images and thermal/infrared images. (Hyde Aff. ¶ 10; Dkt. No. 47, Attach. 20.)
As detailed below, over the course of the investigation, several new applications were made for wiretap and search warrants, yielding further evidence of the drug trafficking conspiracy, and, in particular, Stegemann's role therein. Ultimately, in the early morning hours of April 30, 2013, law enforcement executed a search warrant for 138 Losty Road; upon their arrival, Stegemann fled from the residence. (Hyde Aff. ¶ 16.)
During the execution of the search warrant, police literally and figuratively unearthed a treasure trove of contraband. While allegedly conducting a line search beginning in the area where Stegemann was apprehended after he fled--" clearly" outside of the parameters of his residence and on property belonging to his grandparents, the Foodys--a narcotics-detecting K-9 alerted to a rock pile on the Foody property. (Hyde Aff. ¶ ¶ 16, 17; Stegemann Aff. 2 ¶ 16, Dkt. No. 37, Attach. 43; Dkt. No. 47, Attach. 12.) Ultimately, illegal narcotics were discovered in that location. (Hyde Aff. ¶ 18.) From another rock pile, some forty yards away, but still on Foody property, police found a loaded
and stolen Ruger 9mm pistol and ammunition. ( Id.; Dkt. No. 47, Attach. 11) Within the borders of the 138 Losty Road property, officers seized additional illegal drugs, a large sum of suspected drug money, a loaded Smith & Wesson revolver and ammunition, and four envelopes with $5,000 cash in each. (Hyde Aff. ¶ 19; Dkt. No. 47, Attachs. 8-10.) In addition, inside of Stegemann's residence, police found an envelope " that appeared to contain three account numbers owned by [Stegemann] at Greylock Federal Credit Union." (Scott Aff. ¶ 24.)
Stegemann was arrested and thereafter " charged with various narcotics and firearm charges in Rensselaer County Court." (Hyde. Aff. ¶ 24.) While detained in the Rensselaer County Jail, Stegemann placed two calls from the booking area telephone, one to his mother and the other to his uncle. (Addendum N ¶ ¶ 20-21, Dkt. No. 37, Attach. 40 at 10-19.) No signs or warnings, written or audible, indicated that the telephone was monitored, (Ryan Aff. ¶ 4), and Stegemann claims that Rensselaer County Sheriff's Sergeant Scott Ryan told him that the telephone was not monitored, (Stegemann Aff. 1 ¶ 112, Dkt. No. 32, Attach. 7), although that fact is disputed by Sgt. Ryan, (Ryan Aff. ¶ 5, Dkt. No. 47, Attach. 4). In sum and substance, Stegemann requested that his mother and uncle bail him out of jail during the calls. (Addendum N ¶ ¶ 20, 21.) Following those conversations, which were, in fact, recorded, police met with Stegemann's mother. ( Id. ¶ ¶ 22-23; Scott Aff. ¶ 25.) She told an officer that Stegemann stored a safe in the attic of her daughter, who is also Stegemann's sister. (Addendum N ¶ 23(C).) Stegemann's sister thereafter relinquished the safe to police. ( Id. ¶ 24.) A search of the safe, following issuance of a warrant, revealed that it contained $160,000 in U.S. currency. (Scott Aff. ¶ 27; Dkt. No. 47, Attach. 14.)
Throughout the course of this investigation, Trooper Scott and Investigator Price prepared affidavits in support of applications seeking permission to intercept oral communications over various telephones, and additional search warrants. As reflected in the record, Justice Agostini granted the following applications, which authorized the interception of eight Stegemann target cellular telephones:
Addendum B (March 20, 2013): extension of authority to intercept J. Cantarella's 8174 number for fifteen additional days; authorization to intercept M. Cantarella's 413-449-4064 telephone number; and authority to intercept three telephone numbers, 914-327-7010, 860-380-7692, and 347-443-2833, used by Stegemann. (Addendum B ¶ 19, Dkt. No. 37, Attach. 3 at 27-57; Dkt. No. 37, Attach. 3 at 20-26.) Because J. Cantarella's 6568 telephone had been seized, police did not seek to monitor that number any longer. (Addendum B ¶ 19.)
Addendum C (March 23, 2013): extension of authority to intercept J. Cantarella's 8174 number for fifteen additional days; authorization to intercept J. Cantarella's 413-449-4142 number; and authority to intercept Stegemann's 347-443-2833 number. (Addendum C ¶ 10, Dkt. No. 37, Attach. 4 at 36-47; Dkt. No. 37, Attach. 4 at 19-25.) Because of inactivity on M. Cantarella's 4064, and
Stegemann's 7010 and 7692 numbers, police did not seek to monitor those numbers any longer. (Addendum C ¶ 10.)
Addendum D (March 25, 2013): extension of authority to intercept J. Cantarella's 8174 number for fifteen additional days; extension of authority to intercept J. Cantarella's 4142 number for fifteen additional days; extension of authority to intercept Stegemann's 2833 number for fifteen additional days; and authority to intercept M. Cantarella's 413-449-4179 number. (Addendum D ¶ 10, Dkt. No. 37, Attach. 5 at 39-44; Dkt. No. 37, Attach. 5 at 19-25.)
Addendum E (March 28, 2013): extension of authority to intercept J. Cantarella's 4142 number for fifteen additional days; extension of authority to intercept M. Cantarella's 4179 number for fifteen additional days; extension of authority to intercept Stegemann's 2833 number for fifteen additional days; and authority to intercept Gerald Vailes' 646-739-8881 number. (Addendum E ¶ 21, Dkt. No. 37, Attach. 6 at 43-80; Dkt. No. 37, Attach. 6 at 20-27.)
Addendum F (April 2, 2013): extension of authority to intercept J. Cantarella's 4142 number for fifteen additional days; extension of authority to intercept M. Cantarella's 4179 number for fifteen additional days; extension of authority to intercept Vailes' 8881 number for fifteen additional days; and authority to intercept Stegemann's 347-583-9425 number. (Addendum F ¶ 14, Dkt. No. 37, Attach. 7 at 41-50; Dkt. No. 37, Attach. 7 at 20-27.)
Addendum G (April 5, 2013): extension of authority to intercept J. Cantarella's 4142 number for fifteen additional days; extension of authority to intercept Vailes' 8881 number for fifteen additional days; extension of authority to intercept Stegemann's 9425 number for fifteen additional days; and authority to intercept M. Cantarella's 413-449-4356 number. (Addendum G ¶ 19, Dkt. No. 37, Attach. 8 at 39-53; Dkt. No. 37, Attach. 8 at 18-25.)
Addendum H (April 8, 2013): authority to intercept Stegemann's 347-920-7516 and 203-450-3854 numbers. (Addendum H ¶ 14, Dkt. No. 37, Attach. 9 at 32-38; Dkt. No. 37, Attach. 9 at 18-24.)
Addendum I (April 13, 2013): authority to intercept Stegemann's 917-743-9502 number. (Addendum I ¶ 21, Dkt. No. 37, Attach. 10 at 28-38; Dkt. No. 37, Attach. 10 at 18-24.)
Addendum J (April 19, 2013): authority to intercept Stegemann's 347-920-7516, 917-743-9502, and 347-266-8522 numbers; authority to intercept Vailes' 646-739-8881 number; authority to intercept Andrew Saunders' 413-841-9490; and authority to intercept Delilah Saunders' 718-913-4573 number. (Addendum J ¶ 34, Dkt. No. 37, Attach. 11 at 49-69; Dkt. No. 37 Attach. 11 at 20-27.)
Addendum L (May 1, 2013): authority to search and seize three accounts at Greylock Federal Credit Union. (Addendum L ¶ 49, Dkt. No. 38 at 22-89; Dkt. No. 47, Attach 22.)
Addendum N (May 3, 2013): authority to conduct a search of the safe provided to police by Stegemann's sister. (Addendum N ¶ 27; Dkt. No. 37, Attach. 40 at 10-19.)
Each of the affidavits in support of the wiretaps and search warrants incorporated the contents of earlier filed affidavits, and also successively recited new incriminating facts pertaining to the drug conspiracy and Stegemann's role in that conspiracy, all as revealed by the continuing investigation.
Rensselaer County Court Judge Debra Young granted two applications based, in part, upon another addendum:
Addendum K (April 29, 2013): authority to conduct unannounced search of 138 Losty Road; and authority to conduct sub-surface search of 138 Losty Road. (Addendum K ¶ 71, Dkt. No. 37, Attach. 18; Dkt. No. 37, Attach. 19 at 10-11; Dkt. No. 37, Attach. 19 at 19-20.)
Again, the search warrant applications incorporated earlier-filed affidavits. ( See e.g., Dkt. No. 47 at 20.)
Other applications were made and granted in the course of the investigation, but, because they are not pertinent to Stegemann or he does not seek any relief with respect to them, discussion of those applications/warrants has been omitted.
To put it nicely, the motions filed by Stegemann, both pro se and through counsel, are a jumbled, overly-lengthy, piecemeal mess. Regretfully, the court graciously permitted Stegemann to file an excessively-long memorandum of law and also accepted pro se filings. (Dkt. Nos. 31, 55, 59.) Nonetheless, the court has considered all of the parties' submissions. As explained above, Stegemann moves for: (1) a discovery order, (Dkt. No. 18), a Franks hearing, (Dkt. No. 32, Attach. 2; Dkt. No. 37), the suppression of evidence, (Dkt. No. 32, Attachs. 1, 4, 5, 6; Dkt. No. 37; Dkt. No. 44; Dkt. No. 55), and dismissal of count two of the indictment, (Dkt. No. 32, Attach. 3). While Stegemann filed motions seeking the various relief outlined above, he filed a memorandum of law only in support of his motions to suppress and for a Franks hearing. (Dkt. No. 18; Dkt. No. 32, Attachs. 1, 2, 4, 5, 6; Dkt. No. 37.) Where Stegemann's memorandum of law fails to elucidate or otherwise explain a basis for suppression that is mentioned--but not explained--in one of the documents labeled as a motion to suppress, any legal arguments that such non-specific and unexplained assertions suggest are waived. See Miller, 382 F.Supp.2d at 364-65.
Before delving into the specifics of each motion, the court takes up a preliminary issue that touches upon several of the specific arguments raised by Stegemann. Throughout his motion papers, Stegemann contends that Massachusetts or New York law controls as to various issues--particularly Massachusetts law with respect to the Massachusetts wiretap warrants. ( See, e.g., Dkt. No. 37 at 32-34; Dkt. No. 44 at 6.) As this court has discussed in the past, federal law controls the analysis of issues arising out of state wiretap investigations. See United States v. Vasconcellos,
658 F.Supp.2d 366, 380-82 (N.D.N.Y. 2009). Accordingly, the arguments based on legal principles other than those rooted in federal law are ignored. It is also beyond dispute that federal law generally governs the review of motions to suppress evidence even where the evidence in question was solely the product of an investigation by state police agencies. See United States v. Pforzheimer, 826 F.2d 200, 204 (2d Cir. 1987) (" [F]ederal law should apply to . . . federal criminal prosecution[s], even though the underlying investigation leading to prosecution was ...