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United States v. Gonzalez

United States District Court, W.D. Kentucky, Louisville Division

October 27, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
ISMAEL GONZALEZ, DANTE WATTS, ARIEL CRUZ, OSCAR ARGUETA, KINIKI LUCAS, and JOLIE JOHNSON, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          David J. Hale, Judge United States District Court.

         Defendant Jolie Johnson requests that the Court suppress evidence obtained through wiretaps in this drug-trafficking case, arguing that the government failed to demonstrate the necessity of the wiretaps, as required under the law. (Docket No. 149) Defendants Ismael Gonzalez, Ariel Cruz, Oscar Argueta, Kiniki Lucas, and Dante Watts joined Johnson's motion. (D.N. 155; D.N. 156; D.N. 158; D.N. 159; D.N. 160; D.N. 161; D.N. 163) The United States maintains that the wiretaps and underlying affidavits satisfy the statutory requirement for necessity. (D.N. 164) For the reasons discussed below, the motion to suppress will be denied.

         I. BACKGROUND

         Defendants Ismael Gonzalez, Dante Watts, Ariel Cruz, Oscar Argueta, Carlos Catalan, Kiniki Lucas, and Jolie Johnson were originally indicted on July 6, 2016, on one count of conspiracy to possess with intent to distribute heroin, methamphetamine, and cocaine. (D.N. 18) On June 27, 2017, the grand jury returned a superseding indictment further alleging that Defendants Gonzalez, Watts, and Johnson conspired to launder the proceeds of their unlawful drug-trafficking activities and that Watts conducted financial transactions knowing they were designed to disguise the source of the proceeds. (D.N. 118)

         At least some of the government's evidence against Defendants was obtained via wiretaps approved by this Court. Each wiretap application was accompanied by an affidavit providing support for the application. Eight wiretap applications, along with their supporting affidavits, were submitted in this case. (D.N. 149-1; D.N. 149-2; D.N. 149-3; D.N. 149-4; D.N. 149-5; D.N. 149-6; D.N. 149-7; D.N. 149-8) Only three are relevant here, however. The Gonzalez wiretap was supported by Affidavit IV and approved on May 3, 2016. (D.N. 149-4) The Court also approved two wiretaps of Ricardo Ruiz, who has not been indicted in this action. The first Ruiz wiretap was supported by Affidavit III and approved on April 8, 2016. (D.N. 149-3) The second Ruiz wiretap was supported by Affidavit V and approved on May 20, 2016. (D.N. 149-5) DEA Agent Brian Sanders submitted the affidavits in support of all three of these wiretaps. (D.N. 149-4, PageID # 700; D.N. 149-3, PageID # 634; D.N. 149-5, PageID # 758)

         Defendant Jolie Johnson filed a motion to suppress on July 21, 2017, arguing that the government's wiretap of Gonzalez was illegal because the government had not exhausted normal investigative methods before applying for the wiretap. (D.N. 149, PageID # 475) Johnson's motion to suppress addressed Affidavit IV, which Agent Sanders submitted in support of the Gonzalez wiretap. (Id., PageID # 487) Defendants Gonzalez, Cruz, Argueta, Lucas, and Watts joined Johnson's motion to suppress.[1] (D.N. 155; D.N. 156; D.N. 158; D.N. 159; D.N. 160; D.N. 163) Gonzalez later extended the suppression motion to apply to the two wiretaps of Ruiz as well. (D.N. 161; D.N. 163)

         The United States argues that it properly obtained the wiretaps and that each of the affidavits supporting the applications contained “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.” (D.N. 164, PageID # 1065) In her reply brief, Defendant Johnson alleged for the first time that Agent Sanders intentionally omitted from his affidavits information about a separate federal prosecution in the Eastern District of Kentucky that involved Gonzalez. (D.N. 167, PageID # 1259-60) Defendants Gonzalez and Watts joined Johnson's reply, and Gonzalez requested an evidentiary hearing to determine whether Sanders was forthcoming with the Court regarding the necessity of the wiretaps. (D.N. 170, PageID # 1280-81; D.N. 173; D.N. 178) The Court granted the United States leave to file a sur-reply so that it could respond to the argument that Sanders omitted information from his affidavits. (D.N. 174; D.N. 176) In its sur-reply, the United States noted that the affidavits did in fact discuss the charges in the Eastern District and argued that any omission was not material to the determination of necessity for the wiretaps.[2] (D.N. 177, PageID # 1300-03)

         II. DISCUSSION

         A. Standing

         The United States contends that some of the defendants lack standing to challenge the wiretaps. (See D.N. 164, PageID # 1082-84) Only an “aggrieved person” “may move to suppress the contents of any wire or oral communication . . . or evidence derived therefrom.” 18 U.S.C. § 2518(10)(a). The term “aggrieved person” is defined as “a person who was a party to any intercepted wire, oral, or electronic communication or a person against whom the interception was directed.” § 2510(11).

         While the United States concedes that Defendant Gonzalez has standing to challenge all three of the wiretaps at issue, it argues that (1) Defendants Lucas and Cruz lack standing to challenge any of the wiretaps in this case; and (2) Defendants Watts, Argueta, and Johnson have standing to challenge Affidavit V only. (D.N. 164, PageID # 1084) And because Defendants Watts, Argueta, and Johnson challenge Affidavit IV and not Affidavit V (see D.N. 149, PageID # 487; D.N. 158; D.N. 160), the United States' argument in effect is that the motion to suppress must be denied as to them.

         In their motions to adopt Defendant Johnson's motion to suppress the fruits of the Gonzalez wiretap, Defendants Lucas and Argueta do not articulate how the motion to suppress pertains to them or assert a basis for standing to challenge the wiretap. (See D.N. 159; D.N. 158) There is nothing in the record to suggest that either Lucas or Argueta was a party to any conversation intercepted under the Gonzalez wiretap, and Lucas and Argueta were not targeted by that wiretap. (See D.N. 149-4) For her part, Defendant Cruz asserts in her motion to adopt Defendant Johnson's motion to suppress that “the United States has alleged that Ariel Cruz was captured on the wiretap.” (D.N. 156) However, she cites nothing in the record to support that assertion. (See id.) Moreover, Cruz was not targeted by the Gonzalez wiretap. (See D.N. 149-4) Because Lucas, Argueta, and Cruz are not “aggrieved persons” under § 2518(10)(a), they lack standing to challenge the Gonzalez wiretap.

         In his motion to adopt Defendant Johnson's motion to suppress, Defendant Watts asserts that he has standing because he was recorded speaking to Gonzalez on the wiretap and he was a named interceptee or target telephone owner in all subsequent wiretaps. (D.N. 160, PageID # 1052) In support, Watts cites Affidavit VI, which supported another wiretap that is not at issue in this motion to suppress. (See id.; D.N. 149-6, PageID # 830) As with Defendants Lucas and Argueta, there is nothing in the record to suggest that Watts was a party to any conversation intercepted under the Gonzalez wiretap, and that wiretap did not target Watts. (See D.N. 149-4) Watts is not even mentioned as a target of the investigation in Affidavit IV, which supported the Gonzalez wiretap he now challenges. (See id., PageID # 701-03) Cf. United States v. Wright, 635 F. App'x 162, 170 (6th Cir. 2015) (finding that the defendant lacked standing to challenge wiretap applications where he was not even mentioned as a target of the investigation in the supporting affidavits). Moreover, the fact that Watts was a named interceptee or target telephone owner in later wiretaps does not give him standing to challenge the Gonzalez wiretap. See 18 U.S.C. § 2510(11) (stating that a person must be either a party to an intercepted communication or a target of the interception in order to challenge a wiretap). Because Watts is not an “aggrieved person” under § 2518(10)(a), he lacks standing to challenge the Gonzalez wiretap.

         Finally, in her motion to suppress the fruits of the Gonzalez wiretap, Defendant Johnson asserts that she has standing to challenge the wiretap because she “is one of the people whose conversations with Mr. Gonzalez were recorded after the agents began eavesdropping on Mr. Gonzalez's phone.” (D.N. 149, PageID # 487) In support, she also cites Affidavit VI, which (as previously mentioned) supported a separate wiretap that is not at issue here. (See id.; D.N. 149-6, PageID # 831, 834, 839, 841, 848) The record contains nothing from which the Court may conclude that Johnson was a party to any conversation intercepted under the Gonzalez wiretap, and Johnson was not targeted by that wiretap. (See D.N. 149-4) Like Watts, Johnson is not even mentioned as a target of the investigation in Affidavit IV, which supported the Gonzalez wiretap she now challenges. (See id., PageID # 701-703) See Wright, 635 F. App'x at 170. Because Johnson is not an “aggrieved person” under § 2518(10)(a), she also lacks standing to challenge the Gonzalez wiretap.

         The Court concludes that Defendants Lucas, Argueta, Cruz, Watts, and Johnson lack standing to challenge the wiretaps at issue in this case.

         B. Necessity

         Even if Defendants all had standing to challenge the wiretaps, the Court would nonetheless conclude that the motion to suppress should be denied because the necessity requirement was met.

         1. Standard

         Defendants contend that suppression is warranted because the affidavits in support of the wiretap applications do not meet the requirements of 18 U.S.C. § 2518. (See D.N. 149, PageID # 473-75) Section 2518 provides:

Each application for an order authorizing or approving the interception of a wire, oral, or electronic communication . . . shall 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.

18 U.S.C. § 2518(1)(c). This is known as the “necessity requirement.” United States v. Stewart, 306 F.3d 295, 304 (6th Cir. 2002). There must be “strict compliance” with the statute. United States v. Alfano, 838 F.2d 158, 161 (6th Cir. 1988). “[W]here a warrant application does not meet the necessity requirement, the fruits of any evidence obtained through that warrant must be suppressed.” United States v. Rice, 478 F.3d 704, 710 (6th Cir. 2007).

         The necessity requirement was designed “to ensure that a wiretap ‘is not resorted to in situations where traditional investigative techniques would suffice to expose the crime.'” Alfano, 838 F.2d at 163 (citing United States v. Kahn, 415 U.S. 143, 153 n.12 (1974)). However, “the purpose ‘is not to foreclose electronic surveillance until every other imaginable method of investigation has been unsuccessfully attempted, but simply to inform the issuing judge of the difficulties involved in the use of conventional techniques.'” United States v. Landmesser, 553 F.2d 17, 20 (6th Cir. 1977) (citing United States v. Pacheco, 489 F.2d 554, 565 (5th Cir. 1974)). In other words, “the government is not required to prove that every other conceivable method has been tried and failed or that all avenues of investigation have been exhausted.” Alfano, 838 F.2d at 163 (citing United States v. Brown, 761 F.2d 1272, 1275 (9th Cir. 1985)). “All that is required is that the investigators gave serious consideration to the non-wiretap techniques prior to applying for wiretap authority and that the court be informed of the reasons for the investigators' belief that such non-wiretap techniques have been or will likely ...


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