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December 31, 2002


The opinion of the court was delivered by: Matthew F. Kennelly, United States District Judge:


Defendant Juan Mares-Martinez has been indicted along with eight other defendants for narcotics trafficking offenses. The evidence that the government intends to offer at trial includes tape recordings of conversations involving Mares-Martinez that were intercepted pursuant to a wiretap of a California cellular telephone that he used and a separate wiretap of a Chicago cellular telephone belonging to his brother, Hugo Mares-Martinez. The latter wiretap was authorized by an order entered by this District's then-Chief Judge Marvin Aspen based on an affidavit of DEA Agent Sean Sears that included information garnered from the earlier California wiretap, which had been authorized by an order entered by a California state judge. Specifically, the information in Agent Sears' affidavit included summaries of conversations between Mares-Martinez and a then-unknown Chicago-area resident that had been intercepted pursuant to the California wiretap, referred to as "CA 99-5."

Mares-Martinez has moved for entry of an order suppressing all communications obtained pursuant to the CA 99-5 wiretap; all communications obtained pursuant to wiretap orders that were derived from the CA 99-5 wiretap, including the Chicago wiretap order; contraband seized through investigations that resulted from the CA 99-5 intercept and any derivative intercepts; as well as other fruits of the CA 99-5 intercept. Though his motion and supporting memoranda are not exactly models of clarity, it appears that Mares-Martinez contends that the CA 99-5 intercept was never properly authorized; the CA 99-5 wiretap was premised on illegally-obtained evidence; the affidavit used to obtain the CA 99-5 intercept contained material false statements and omitted material facts; the interceptions were not "minimized" as required by law; no notice to persons whose conversations were intercepted was provided; and the tape recordings were not properly sealed. Among other things, Mares-Martinez seeks a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), to establish his claim that the warrant applications were tainted by intentional false statements and omissions. For the reasons stated below, the Court concludes that Mares-Martinez is entitled to a hearing on his Franks claim but otherwise denies his motion to suppress.

Facts concerning the wiretaps

It appears that the government intends to offer at trial certain of Mares-Martinez's conversations that were intercepted via the CA 99-5 wiretap, as well as conversations intercepted via the wiretap authorized by Chief Judge Aspen, which we will refer to as the "Chicago DEA wiretap." In addition, the Chicago DEA was premised in significant part on information garnered in the CA 99-5 wiretap. We will therefore begin with an examination of the circumstances that led to the CA 99-5 wiretap and will then discuss the Chicago DEA wiretap.

A. The CA 99-5 wiretap

Jones reported that in August 1996, he had begun investigating a cocaine trafficking organization in the Los Angeles area, and that he had obtained, in October and November 1996, federal wiretap orders targeting two cellular telephones connected to what he referred to as the "Alberto Beltran cocaine trafficking organization." These wiretaps resulted in the interception of conversations concerning cocaine trafficking between Ortiz Gonzales and the targets of the Beltran investigation. Jones summarized a series of conversations in November 1996 between Ortiz Gonzales and the targets of the Beltran investigation in which, he said, the parties had spoken in coded language about the delivery of 50 kilograms of cocaine to Gonzalez in return for $590,000. Several days later, Jones stated, surveillance officers seized $587,500 in currency at the United States/Mexico border from a person identified as a courier for the Beltran organization. In early December 1996, officers working with Jones seized 1,495 kilograms of cocaine and arrested the original targets of the investigation. Jones stated that following the arrests, an unnamed "person in charge of this distribution organization" identified Ortiz Gonzalez was one of the primary customers of the organization; Jones also stated that a ledger seized via a search warrant for a house used by Beltran organization figures reflected that Ortiz Gonzales had received 50 kilograms of cocaine.

Jones' affidavit reported no further activities until late October 1998, when, he said, he was assigned to assist the Tucson, Arizona FBI office with surveillance of a drug smuggling organization believed to be responsible for transporting cocaine from Arizona to Southern California. On November 7, 1998, Jones stated, officers seized $1,400,000 in currency, a weapon, electronic pagers, and cellular telephones, and they arrested three individuals from Tucson and Nieves Montenegro-Nunez of Porterville, California, one of the targets of the CA 99-5 wiretap application. The events leading to arrest and seizure were not described in Jones' affidavit. Jones stated that an arrestee named Ira Friedman gave a statement to the authorities reporting that on October 31, 1998, he had driven a U-Haul truck containing 1,000 kilograms of cocaine from Tucson to Glendale, California, where he delivered it to two Hispanic men, including Nunez, the following day, and that the $1,400,000 seized on November 7 was partial payment for the cocaine.

Jones reported that he had reviewed telephone records for Friedman's and Nunez's cellular telephones for the period from October 22, 1998 through November 7, 1998. Among other things, the records for Nunez's phone revealed twelve calls to Target Telephone #1 on October 22, and two more on November 1, just a few hours after Nunez had picked up the cocaine. Jones opined that the calls to Target Telephone #1 were made to advise that the cocaine had been received. Shortly after this, Nunez received an incoming call from a cellular site close to the residence of Nevarez, the subscriber of Target Telephone #2 (evidently the records did not permit identification of the phone from which the incoming call was made). The next morning, November 2, Nunez called Ortiz Gonzalez's cellular phone. Review of the records of Ortiz Gonzalez's phone for October 25 through November 12 revealed two calls to Target Telephone #1 on November 2, and one each on November 5, 6, 9, and 12. Jones opined that these calls were made to arrange for the sale of cocaine.

Jones had also reviewed the records for Target Telephone #1 for October 29, 1998 through February 8, 1999. The records reflected a non-existent billing address. Target Telephone #1 had dialed Ortiz Gonzalez' cell phone nine times during that period, including two calls on November 1, just one hour after Nunez had called Target Telephone #1, and one more call the next day. Jones opined that these calls reflected that the person using Target Telephone #1 had received a shipment of cocaine and was arranging to sell part of it to Ortiz Gonzales. The records of Target Telephone #2, also reviewed by Jones, reflected that the application, in the name of Javier Nevarez, listed a driver's license number of a deceased 97 year old woman. Target Telephone #2 had dialed Target Telephone #1 once on the morning of the cocaine delivery (November 1), twice the next morning, and once the following morning. Target Telephone #2 had also called Target Telephone #3 twenty-four times between September 5 and December 7, 1998. Jones also stated that surveillance reports from September 1998 and February 1999 reflected that Ortiz Gonzalez had been followed several times from his residence to the home of the subscriber of Target Telephone #2, property owned by Ortiz Gonzalez and his wife. Finally, Jones reported that the records for Target Telephone #3 indicated that Ortiz Gonzalez was the subscriber. Target Telephone #3 had called Target Telephone #1 on November 1, 1998, a few hours after Nunez received the cocaine and two minutes after Nunez had called Target Telephone #1. Jones opined that this call was made to determine whether the person using Target Telephone #1 had received any cocaine. During the period from September 8, 1998 through January 7, 1999, Target Telephone #3 had dialed Target Telephone #1 eighteen times and Ortiz Gonzalez's cell phone twelve times. Jones summarized by stating that the "calling patterns" of these telephones reflected that Ortiz Gonzalez and the users of Target Telephones #2 and #3 were calling the user of Target Telephone #1 to arrange for the purchase of cocaine from the latter.

Jones also reported that Task Force Officer Denise Oglesby had advised him that officers had followed Ortiz Gonzalez on a number of occasions and that he had used "counter-surveillance driving techniques" common to drug traffickers and that although Ortiz Gonzales had recently purchased a home, they had never seen him go to a place of employment.

Jones' affidavit also detailed his review of the results of previously-authorized pen registers (which had begun on November 1, 1998) on the target telephones, as well as additional telephone records. These reflected, among other things, numerous calls between Target Telephone #1 and three cellular telephones and a pager in the Chicago area.

Jones' affidavit also contained a discussion of why other methods of investigation were "not likely to succeed in identifying the full scope of [the] conspiracy." Jones Affidavit, p. 37. First, Jones stated, "[t]here are no confidential informants or undercover agents in a position to assist with the current investigation targeting [Ortiz] Gonzalez, Rodriguez, and Nunez." Id. Second, the subscriber of Target Telephone #1 had not been identified. Third, surveillance of Ortiz Gonzalez had been largely unsuccessful, due partly to Ortiz Gonzalez's success in evading surveillance officers. Fourth, surveillance of the home of the subscriber of Target Telephone #2 was impractical due to the physical layout of the residence and the strong likelihood of detection. Fifth, investigating officers had not identified any location used to "stash" cocaine, and though they were aware of the residences of several of the participants, the possibility of obtaining paper evidence of a conspiracy via search warrants was outweighed by the fact that this tactic would expose the investigation. Sixth, pen registers, though valuable in producing circumstantial evidence of a conspiracy, do not disclose the contents of telephone communications. And finally, Jones opined that although Nunez and the targets of the Beltran investigation might have some information about the activities of Ortiz Gonzalez and the user of Target Telephone #1, giving immunity to Nunez was "not desirable" due to the extent of his own criminal activities, and any information possessed by targets of the Beltran investigation was likely stale.

The wiretap authorization was issued by Los Angeles County Superior Court Judge Larry Fidler on March 30, 1999.

B. The Chicago DEA wiretap

Chief Judge Aspen's order authorizing the Chicago DEA wiretap was issued following his review of a May 19, 1999 affidavit signed by DEA Special Agent Sean Sears, who sought authorization to intercept "Target Phone 1," a cell phone subscribed to by Froilan Guaderramma of Cicero, Illinois, as well as communications received by a particular pager, "Target Pager 1." Sears averred that there was probable cause to believe that Guaderramuma, Armando Castillo-Carrillo, also known as Victor Najera, Michael Rodrigues, Javier Nevarez, Isaias Ortiz Gonzalez; Nieves Montenegro-Nunez; and Juan Mares-Martinez,*fn1 also known as "El Senor," were involved in illegal narcotics trafficking and that the wiretap would uncover evidence of this activity.

Sears' affidavit reported that Castillo-Carrillo had previously been arrested in 1994 for attempting to transport 119 pounds of marijuana from Tucson to Phoenix, Arizona, and in 1998 in Illinois while unloading a trailer containing a large quantity of marijuana; the dispositions of these cases were not reported. Rodrigues was identified as the subscriber of "CA Phone A," the same phone as "Target Telephone #1" in the CA 99-5 wiretap; Nevarez as the subscriber of "CA Phone B," the same phone as "Target Telephone #2" in the CA 99-5 wiretap; and Ortiz Gonzalez as the subscriber of "CA Phone C," the same phone as "Target Telephone #3" in the CA 99-5 wiretap. Mares-Martinez was believed to be the user (though evidently not the subscriber)*fn2 of CA Phone A, as well as two other cellular telephones registered in California, referred to as CA Phones D and F, though the basis for this belief was not described in the affidavit. Sears' affidavit stated that Mares-Martinez had been arrested in August 1998 for possession of sixty-one kilograms of cocaine and four weapons.

The core of Sears' affidavit, however, involved communications that had been intercepted pursuant to the CA 99-5 wiretap; according to Sears, these conversations reflected that Mares-Martinez and others were conducting large scale narcotics transactions in California and Illinois. The affidavit said that Mares-Martinez was the user of CA Phone A, but it did not describe the basis for that belief. On March 31, 1999, the day that the CA 99-5 wiretap began, the user of CA Phone A called Target Phone 1, did not reach the user of that phone, then left a call back number of Target Pager 1. Telephone records reflected that there had ensued a series of calls between Target Phone 1 and CA Phone A on March 31 which were intercepted via the wiretap. Sears summarized the contents of these calls and opined that they involved coded discussions concerning the delivery of a total of 246 kilograms of cocaine from the user of CA Phone A to the user of Target Phone 1, in return for a total of $350,000; arrangements for obtaining additional quantities of cocaine; and delivery of another thirty kilograms of cocaine the following day. Sears also summarized a series of calls between the users of the two telephones in early April, which Sears interpreted as further discussions about the delivery and sale of cocaine. Sears also summarized several calls made from CA Phone A to other Chicago-area telephones which he likewise interpreted as coded conversations ...

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