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United States v. Salazar-Rojas

United States District Court, W.D. Washington, Seattle

February 18, 2015

GILBERTO SALAZAR-ROJAS, et al., Defendants.


ROBERT S. LASNIK, District Judge.

This matter comes before the Court on "Defendant Salazar-Rojas' Motion To Suppress Evidence Obtained By Unlawful Interception Of Telephonic Communications, " Dkt. #487, in which defendants Cruz-Cruz, Gutierrez and Cruz-Olivero join, Dkt. #491; Dkt. #492; Dkt. #247 (CR13-49RSL); and defendant Salazar-Rojas' "Motion To Compel Supplemental Discovery In Support Of Request For Franks Hearing, " Dkt. #515.[1] Having reviewed the memoranda and exhibits submitted by the parties, and having heard the parties' arguments at the January 15, 2015 hearing, the Court finds as follows.


This case arises out of a 10-month investigation into the Salazar drug trafficking organization ("Salazar DTO"), which culminated on or about February 6, 2013 with the execution of several arrest warrants and yielded indictments against multiple defendants. Dkt. #476 (Order Denying Motion to Suppress) at 1-2. Several wiretaps targeting defendant and intercepting his calls were authorized by the Honorable Richard A. Jones of this District; the government has stated that the only wiretaps it intends to use as evidence in this case are those authorized by Judge Jones. Dkt. #522 at 3. Defendant was also targeted and intercepted by wiretaps authorized by the Honorable Lawrence J. O'Neill of the Eastern District of California; the contents of several calls intercepted by wiretaps authorized by Judge O'Neill were included in affidavits for wiretaps authorized by Judge Jones. Dkt. #513 at 46-51. Defendant claims standing to directly challenge ten total wiretap orders issued by these two judges. Dkt. #519 at 8.

Defendant claims to have identified 80 separate wiretap orders relating to eight cases (including his own) spanning six years (2007-2013) targeting the same or related DTOs in four states, and argues that the validity of these wiretap orders and the fruits of these investigations have bearing on whether evidence may be suppressed in this case. Dkt. #487 at 2-3; Dkt. #523 (Def. Reply Compel) at 1. Defendant seeks to compel discovery relating to these other investigations and to suppress the evidence obtained from the wiretaps in this case. Dkt. #523.

Defendant argues that the government's applications for the wiretaps that defendant has standing to challenge ("defendant's wiretaps") did not comply with Title III of the Omnibus Safe Streets and Crime Control Act of 1968, 18 U.S.C. §§ 2510 et seq. ("Title III"), because they failed to include information concerning all of the previous wiretaps and related investigations. Id. at 2. Because of these omissions, the issuing judges could not have made fully-informed decisions concerning whether the wiretaps they authorized were actually necessary to achieve their stated goals, namely revealing the full scope of the Salazar DTO. See id. Because it is possible that the government had learned far more about the Salazar DTO than its individual wiretap applications let on, these applications did not represent the "full and complete statements" required by Title III. Id . While defendant at this point has no evidence that any application actually omitted information material to a necessity finding, defendant seeks to compel discovery so that he may prove the existence of such omissions, which in turn will allow him to seek a Franks hearing. Dkt. #515 at 4.[2] Because sifting through the records related to eight cases and 80 wiretap orders presents an unmanageable burden for the Court, defendant also argues that the wiretap evidence in his case must be suppressed on the grounds that it is impossible for the Court to do justice to defendant's Due Process rights. See Dkt. #519 (Def. Reply Suppress) at 8-9 (asserting that the Court must review numerous wiretap applications for compliance with Title III).

Defendant also advances a "fruit of the poisonous tree" argument for compelling discovery and suppressing the fruits of the wiretaps in this case. Defendant argues that if a given wiretap (regardless of its target) was invalid, then its fruits should not have been used to support the applications for the wiretaps (authorized by Judge Jones and Judge O'Neill) that defendant has standing to challenge. Dkt. #519 at 4; Dkt. #534 at 5. Thus, defendant argues that he must be allowed to scrutinize the application (and evidence supporting said application) for every wiretap that produced evidence later included in the applications for defendant's wiretaps. Id . If any of those previous wiretap applications were flawed (i.e., for lack of necessity or probable cause), their fruits would have to be excised from the applications for defendant's wiretaps, compelling the Court to reassess the later wiretaps' validity. Id.

Moreover, defendant argues that the wiretap applications that he has reviewed failed to satisfy the "particularity" requirements of the Fourth Amendment and Title III, in that they did not provide details about the structure and hierarchy of the targeted DTOs to confirm that they actually were the type of organizations that Title III was written to target (or establish that a wiretap was necessary to investigate a given organization). Dkt. #487 at 22, 31. Defendant contends that the applications and resulting orders were "unconstitutionally overbroad" because they never provided "a particularized description of the alleged Drug Trafficking Organization[.]" Id. at 22.

Finally, defendant argues that the breadth and length of the government's investigation into the Salazar DTO and other DTOs, and the sheer number of separate wiretap authorizations, reaches beyond the scope of what Title III intended and violates the Fourth Amendment. Defendant Salazar-Rojas and co-defendant Cruz-Cruz contend that the government has not been investigating "organized crime, " which Title III was meant to target, but a loosely-affiliated, amorphous network of drug distributors (or an "open black market, " as Cruz-Cruz characterizes it). Dkt. #487 at 31; Dkt. #248 at 5 (CR13-49RSL). Defendants assert that the government may not invoke Title III to secure wiretaps targeting this type of network.


(a) Title III and Franks v. Delaware

Pursuant to the Title III, an application for a court-authorized wiretap 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." 18 U.S.C. § 2518(1)(c). The judge reviewing the application must determine whether the government has properly shown that "normal investigative procedures" have failed or should not be attempted. See 18 U.S.C. § 2518(3)(c). In essence, the government must overcome a statutory presumption against granting a wiretap application by showing that the wiretap is necessary to further an investigation, United States v. Gonzalez, Inc., 412 F.3d 1102, 1112 (9th Cir. 2005); if law enforcement has not attempted to use traditional methods in a case before resorting to a wiretap, then the court must reject the government's application, United States v. Carneiro, 861 F.2d 1171, 1176 (9th Cir. 1988). This "necessity" requirement exists in order to limit the use of wiretaps, as they are highly intrusive. United States v. Commito, 918 F.2d 95, 98 (9th Cir. 1990). When reviewing whether a wiretap authorization order was properly issued, a court reviews de novo whether the application represented a "full and complete statement, " and reviews the issuing judge's finding of necessity for abuse of discretion. United States v. Shryock, 342 F.3d 948, 975 (9th Cir. 2003); United States v. Yim, 2012 WL 395791, at *5 (W.D. Wash. Feb.7, 2012), aff'd sub nom., United States v. Drew Yim, 534 F.Appx. 623 (9th Cir. 2013).

To obtain an evidentiary hearing under Franks v. Delaware, 438 U.S. 154 (1978), based on flaws in the government's wiretap application, defendant must make a preliminary showing that the government made an intentional or reckless misstatement or omission in its application that was ...

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