The opinion of the court was delivered by: BRAZIL
REPORT AND RECOMMENDATION RE DEFENDANTS' MOTION TO SUPPRESS EVIDENCE ACQUIRED DURING AND AS A RESULT OF WIRETAP
Because this Report is so long, I have included a Table of Contents, which is presented on the next two pages.
I. PROCEDURAL BACKGROUND AND RECOMMENDATION
IV. SUMMARY OF PRINCIPAL FINDINGS
V. FINDINGS OF FACT: A CHRONOLOGICAL PORTRAIT OF THE INVESTIGATION AND OF AILEMEN'S RESPONSE TO THE UNDERCOVER OPERATION
VI. THE CREDIBILITY OF THE AFFIANT AND ITS ROLE IN RESOLVING THE ISSUES PRESENTED BY DEFENDANTS' MOTION; ADDITIONAL FINDINGS OF FACT BASED ON TESTIMONIAL CREDIBILITY
VII. THE AFFIDAVIT: MATERIAL MISSTATEMENTS
A. The Identities of Other Participants
B. "Danger" and the Use of Normal Techniques
C. In 1990 Ailemen Was Acquitted, Leaving His Heroin Trafficking Organization Intact
D. The Largest Volume Heroin Dealer in the City of Oakland Area
E. Duration of Use of Video Camera
F. Use of Informants and Undercover Agents
I. None of the Named Interceptees Is Known to Be Represented by Counsel
VIII. THE AFFIDAVIT: RECKLESSLY MISLEADING INFORMATION THAT WAS MATERIAL TO THE NECESSITY DETERMINATION
The Interview of Francis Idialu
IX. THE AFFIDAVIT: ADDITIONAL MATERIAL OMISSIONS
Resources Not Utilized and Leads Not Pursued
Mrs. B. Aghayere and Tracey Asemota
Leads Through the Hijacking
DHL, UPS, and Federal Express Records
The Canadian Case in Which Sidney Gladney Was Charged
X. CONCLUSION AND RECOMMENDATION
PROCEDURAL BACKGROUND AND RECOMMENDATION
As requested by the District Court, I conducted an evidentiary hearing on the defendants' joint motion to suppress the evidence acquired during and as a result of the wiretap that District Judge D. Lowell Jensen first authorized on July 29, 1993. In authorizing the wiretap, Judge Jensen relied on a 69 page "Affidavit In Support of Application" (hereafter referred to and cited simply as the "Affidavit") that was executed and filed that same day, July 29, 1993. The affiant was Special Agent Robert J. Silano, who had been the chief case agent in the investigation in which the wiretap was to be used. At the same time Agent Silano submitted his affidavit, the formal "application" for the wiretap was submitted by Assistant United States Attorney Nandor J. Vadas, the prosecutor who was assigned primary responsibility for this matter from its inception until about the time Judge Jensen initially authorized the wiretap. (TR 6: 1304).
The evidentiary hearing on this joint defense motion consumed some six and one-half days -- December 9 through December 16 of 1996 and February 3, 1997.
Hundreds of pages of exhibits were admitted. The transcript of the proceedings (cited here as TR) consumes about 1,450 pages. The post hearing briefing, which was substantial, concluded on March 7, 1997, with the filing of a supplemental reply brief by defendant Nathaniel Iheukwu. At that point the matter was deemed submitted.
Based on the findings of fact that are made below, as well as the legal reasoning described herein, I RECOMMEND that the District Court GRANT THE DEFENDANTS' JOINT MOTION TO SUPPRESS the evidence obtained during and as a result of the wiretap that Judge Jensen first authorized on July 29, 1993.
The defendants' motion is based on the contention that in securing authorization for the wiretap the government violated the "necessity" requirement that Congress interposed as a precondition to use of this kind of investigative tool. That requirement is articulated in paragraphs (1)(b) and (3)(c) of 18 U.S.C. § 2518. Through these paragraphs, Congress required applications for wiretaps to include, among other things, "a full and complete statement of the facts and circumstances relied upon by the applicant, to justify his belief that an order should be issued, including . . . [(1)(c)] 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." Under paragraph (3)(c) of the same statute, a district judge cannot authorize use of a wiretap unless, among other things, he or she determines "on the basis of the facts submitted by the applicant that . . . normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous."
Under the applicable authorities, defendants may challenge the issuance of an order authorizing a wiretap through a three-step analytical process. First, they must prove that the affidavit on which the issuing judge relied contained misstatements or omissions. Second, they must prove that the misstatements or omissions were either intentional or the product of recklessness. Third, they must show that if the misstatements were deleted or corrected, and if the information that was omitted was added, a district court would conclude that the required showing of "necessity" for the wiretap had not been made (thereby making the intentional or reckless misstatements or omissions "material" to the " necessity" determination). See United States v. Ippolito, 774 F.2d 1482 (9th Cir. 1985); and Franks v. Delaware, 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978).
According to the Ippolito court, the "necessity" requirement reflects a congressionally mandated (statutory) presumption against authorizing a wiretap. It is only by making the requisite showing of necessity that the government can overcome that presumption. 774 F.2d at 1486. Moreover, to be sufficient to overcome the presumption, a showing of necessity
"must allege specific circumstances that render normal investigative techniques particularly ineffective or the application must be denied. [citations omitted] The reason for requiring specificity is to prevent the government from making general allegations about classes of cases and thereby sidestepping the requirement that there be necessity in the particular investigation in which the wiretap is sought. The District of Columbia Circuit observed that: 'we must be careful not to permit the government merely to characterize a case as a 'drug conspiracy' . . . that is therefore inherently difficult to investigate. The affidavit must show with specificity why in this particular investigation ordinary means of investigation will fail.'"
The Ippolito court proceeded to point out that in determining whether the government has satisfied the necessity requirement district courts must use a "practical and common sense approach," applying a "standard of reasonableness." Under this approach, "law enforcement agencies need not exhaust all conceivable alternative procedures before resorting to a wiretap, [but] the government must show, by a full and complete statement . . . that normal investigative techniques employing a normal amount of resources have failed to make the case within a reasonable period of time." Id.
For the reasons explained at length below, I have concluded that the affidavit that the government submitted to Judge Jensen in this case fell far short of being "a full and complete statement" about the status of the investigation at the time the wiretap was sought. The affidavit included material misstatements, made either intentionally or recklessly. As important, the government omitted from the affidavit, intentionally or recklessly, a great deal of information that was material to a necessity determination. If the false and foreseeably misleading statements had been corrected and the omitted information had been added, Judge Jensen would not have authorized the wiretap -- because he would have concluded that the government had not yet made the required "good faith effort" to generate the evidence it needed through normal investigative techniques. Id. Instead, it would have been clear to Judge Jensen that, relative to the alleged magnitude of the case and the "high priority" of the investigation, the government had not devoted reasonable resources over a reasonable period of time to normal investigative methods.
The recommendation made here implicates values and interests of sufficient moment to warrant additional prefatory comment. First, it is important to me that all parties understand that I take no pleasure in making either the findings or the recommendation that are presented in the pages that follow. If my recommendation is accepted, the government will not be able to use a great deal of evidence -- evidence that might implicate several defendants in criminal conduct that is profoundly despicable. The findings and recommendations made in this Report are informed by no sympathy for persons who commit drug offenses and no joy over the effects this Report may have on the government's ability to make its case against the remaining defendants.
I also take no pleasure in passing judgment on the good faith and/or competence that attended the preparation and presentation of the affidavit and the testimony given in the evidentiary hearing. I make these judgments about the work and words of others only because I am required to do so by my job. And I profess no infallibility. Both my charge and the reach of my resources are limited: I only draw inferences based on reason from evidence. I cannot "know" with absolute certainty that my inferences are accurate or that my judgments are fair. It is not my place to pass ultimate moral judgment -- rather, I apply a legal standard to the record that counsel have developed.
It also is important to emphasize that I understand that the legal standard that is applicable here is not perfection -- and that the vantage point from which the pertinent judgments are to be made is not the full clarity of 20/20 hindsight. The applicable law leaves reasonable room for human error (as reflected in phrases like "practical and common sense" and "standard of reasonableness"). And the "necessity" requirement cannot be construed literally -- it does not mandate that the government exhaust every normal investigative technique or that the affiant for a wiretap disclose to an issuing judge every nook and cranny of an investigation or every conceivable lead not followed. Rather, what the law requires is a good faith and substantial effort to acquire needed evidence by traditional means, or a showing either that there is insufficient likelihood that such an effort would be successful or that it would be unacceptably dangerous. After making such a good faith effort or determination, the law requires the government to submit an affidavit that gives the issuing judge a fair, essentially accurate picture of the status of the investigation, of what the government has tried to do, what it has learned, and which apparently promising investigatory avenues it has not pursued (before seeking authorization to use the wiretap). It is because I have concluded that the affidavit presented to Judge Jensen falls far short of achieving these fundamental purposes that I recommend suppression of the evidence acquired through and as a result of the wiretap.
While the necessity requirement demands something considerably less than perfection, it must have some real meaning, and a responsible court has no choice but to order suppression when, as here, the affidavit clearly fails to meet the standards that derive from that requirement.
There is one additional set of considerations that must be borne in mind by judges who are addressing the kinds of issues raised here and by law enforcement agents who are drafting affidavits for wiretaps. The district judges to whom these kinds of affidavits are presented face, at least in many urban courts, pressing and diverse demands on their clearly limited resources. Many (unlike Judge Jensen) have no background in criminal law. Many will not have a refined understanding of the subtleties of the necessity requirement. And in many instances, the government will present the affidavit the same day it hopes to begin the wiretap. Judges, of course, are not required to complete their reviews on a timetable set by the investigators, but many judges feel constrained to try to respond promptly to what they assume is a real law enforcement need.
Given these foreseeable facts of judicial life, it is wholly unrealistic to expect most district judges to spend hours and hours of assertive analytical effort dissecting and probing affidavits like this. It is reasonable to expect reviewing judges to be conscientious, and to read the affidavits carefully, but the affidavits must be crafted in a way that will permit a conscientious district judge to understand all the essential elements of the investigatory situation without committing an unreasonable number of hours to the effort. This means that the affidavits must be straightforward (clear, direct, and succinct) about the matters that are most important to the necessity determination. They must be drafted to communicate clearly and quickly the actual state of the investigation and of the government's knowledge. In short, the foreseeable circumstances in which many district judges will be reviewing these kinds of affidavits place a real premium on quality and honesty in drafting. Knowing that a wiretap can threaten core values in our society and that a reviewing district judge will be forced to rely heavily on the product of their work, the government's agents and lawyers should make extra efforts to be sure their affidavits fulfill Congress' expectations.
I make these observations because I was able to understand many of the important shortfalls in this affidavit, to see through the mass of minutiae to some of the core realities of the investigatorial situation, and to identify important internal inconsistencies, only after a great deal of careful analysis and, in some instances, only with the aid of adversarial briefs and testimonial elucidation.
As I will make clear with specific examples in sections that follow, the structure and content of Agent Silano's affidavit tend to obscure important facts about the state of the investigation. And in some important instances words in the necessity section are inconsistent with details in the body of the description of investigatorial undertakings. Moreover, in some places the phraseology in the affidavit is ambiguous or misleading -- making accurate understanding very difficult. Standing alone, these characteristics of the affidavit might not be sufficient to warrant suppression under the standards established by Franks and Ippolito, but joined, as they are, with so many material misstatements and omissions, they reinforce my conviction that the only legally appropriate response to defendants' motion is to grant it.
SUMMARY OF PRINCIPAL FINDINGS
The affidavit that the government submitted to Judge Jensen on July 29, 1993 was fundamentally misleading and was drafted either with intent to conceal facts that were critical to the necessity determination or with reckless disregard for whether the affidavit would have that effect. In combination, material misstatements and omissions, internal inconsistencies, ambiguous phraseology, the fact that much of the affidavit was devoted to a recitation of obviously unnecessary details about a limited set of interactions with two defendants, and the timing of the presentation of the affidavit to Judge Jensen (several months after the government had stopped virtually all of the significant investigatory work on the case that was not related to analysis of use of telephones) compel the conclusion that the affidavit, intentionally or recklessly, obscured or concealed (1) how modest the commitments had been to normal investigative techniques, (2) despite the modesty of these commitments, how many alleged co-conspirators or aiders and abettors, as well as how many likely interceptees, the government had been able to identify, (3) how many leads and significant investigative opportunities the government had before the wire went up but chose not to pursue, and (4) how early the government shifted the focus of its investigation away from other, traditional investigative work and toward preparing for the wiretap.
On the basis of evidence described below, I find (1) that the government in fact devoted less than two months of serious undercover and surveillance work to this investigation before it decided to shift the investigatorial center of gravity to the wiretap,
(2) that that work had been remarkably successful and held considerable promise, (3) that the government chose not to pursue many potentially significant investigatory leads that it had developed, or with reasonable competence should have developed, well before it sought authorization for the wiretap -- and that some of these leads clearly would have yielded valuable information about the sources of the drugs in which Ailemen was trafficking, (4) that the decision to rely on the wiretap as the principal investigatory tool was made no later than the first week in March of 1993 -- almost five months before the application was submitted, and (5) that after that time the only investigatory efforts of any consequence were directed toward analysis of telephone communications.
I also find that the affidavit was drafted, intentionally or recklessly, in a way that effectively obscured all of these facts from Judge Jensen's view. It encouraged him to infer, erroneously, that the government had devoted considerable resources to this "high priority"
investigation, that the undercover operation had enjoyed only very limited success because Ailemen remained elusive and distrustful, that substantial investigatory work through traditional techniques continued to be undertaken during March, April, May, June and July of 1993,
and that the government had precious few promising leads that were amenable to normal (non-wire) investigation at the time the affidavit was submitted.
The affidavit did not disclose how much the government knew about the connections (in personnel and operations) between the instant case and the case it had unsuccessfully prosecuted against Ailemen in 1989 and 1990. Nor did the affidavit disclose that the agents who worked on the 1993 case devoted appreciably less than full time to it before the wiretap application was presented,
that resources from other law enforcement agencies were available but not used, that after the first two undercover buys, in which the government spent a total of $ 27,000, the agents decided that they would not spend any additional money in drug transactions with the defendant (even though the government believed he regularly engaged in transactions involving much larger quantities of heroin and much larger sums of money), that virtually all of the limits on the government's interaction with the defendant (through the undercover agents and the principal confidential informant) were self-imposed, that no meaningful effort had been devoted to exploring the financial aspects of Ailemen's activities (or the financial aspects of the activities of any of the other suspected members of his "organization"), or that the lead case agent for the DEA allegedly felt that other DEA offices and other federal law enforcement agencies had not been responsive to his informational needs and would not commit significant resources to this case unless and until a wiretap was installed. All of these facts would have been material to the necessity determination by the district judge -- and the government's failure to disclose them was the product of at least recklessness.
It also is significant that the center of informational gravity in the affidavit is fundamentally misleading. The affidavit is dominated by a plethora of unnecessary detail about two sets of interactions between the undercover agent and Pius Ailemen or Ellis Quarshie.
The two periods of substantial interaction were December 3 through December 12, 1992, and February 3 through February 19, 1993. More than 30 pages of the affidavit is devoted to description of the details of conversations and conduct during these two periods - details that were obviously unnecessary for any of the purposes for which the affidavit was submitted.
For example, the probable cause requirement of 18 U.S.C. § 2518 (3)(a) clearly could have been satisfied with a much shorter, more focused presentation of the basic facts about the two sales by Ailemen to the undercover agent. Nor were most of these details necessary to show that "particular communications" concerning the alleged offenses would be obtained through the proposed interceptions;
the affidavit devoted another nine pages to material pertinent to that requirement.
The fact that so much of the affidavit was devoted to such clearly unnecessary detail invites an inference that its purpose was not to meet any requirements imposed by the law, but to create a false impression about the magnitude of the effort committed to normal investigatory techniques -- and to distract the reviewing judge's attention from the fact that potentially important leads had not been pursued and from the fact that during the last several months before the affidavit was submitted the only consequential effort in the case was devoted to analysis of use of the target phone.
Finally, it is important to point out the location, in the affidavit, of the most troublesome omissions, misstatements, and misleading presentations. It is not insignificant that the defects in the affidavit that are most consequential to the necessity determination appear in two critical places: (1) in the background section, near the beginning, where the basic predicates that will inform the reading of the remainder of the text are set forth, and (2) in the "necessity" section, i.e., that portion of the affidavit where the government purports explicitly to summarize the circumstances that give rise to the "Need for Interception of Wire Communications; Exhaustion of Alternative Investigative Techniques." Affidavit at 57-65. Reckless omissions and errors in these two parts of the affidavit have greater impact than they would in other areas. Moreover, because the bulk of the affidavit is burdened by the inclusion of so much obviously unnecessary detail, the drafters of this affidavit could have foreseen that a reviewing judge would not be likely to detect inconsistencies between the summaries presented in the "necessity" section and the facts and evidence set forth so laboriously in the central portions of the affidavit.
FINDINGS OF FACT: A CHRONOLOGICAL PORTRAIT OF THE INVESTIGATION AND OF AILEMEN'S RESPONSE TO THE UNDERCOVER OPERATION10
I find the following facts.
The first federal investigation of alleged drug trafficking by Pius Ailemen began in 1987. The lead case agent was the DEA's William Iseri. Agent Silano was not assigned to that case and did no work on it, but had heard a little about it.
The principal prosecutor was Nandor Vadas, who also was the principal prosecutor assigned to the current case until the end of July of 1993.
In the earlier case, undercover agents negotiated drug transactions with Ailemen and learned that he used young, white, female couriers to transport heroin from overseas into and around the United States. Many of the these couriers were identified,
and some gave the prosecutors considerable information about how Ailemen smuggled drugs. See, generally, Exhibits 2 - 9. The first investigation also developed information implicating Sidney Gladney, Nathaniel Iheukwu, Loreli Washington, and Victor Onuaguluchi in Ailemen's trafficking. During the undercover part of the investigation, an agent had been able to develop a "very good rapport" and a trusting relationship with Ailemen quickly; in fact, Ailemen had offered to take two undercover agents to Amsterdam to meet with a man who Ailemen said was exporting large quantities of heroin to the United States.
TR 1:98; Ex. 3 at 16.
The trial in the first case against Ailemen occurred in 1990. The jury convicted him only on one count, for intentionally making a false statement in a passport application. He was acquitted on all the drug charges after presenting, largely through his own testimony, what amounted to a duress defense. He was sentenced initially to five years in prison, but that sentence was appealed. By October of 1991 he had been released from prison, and when the investigation that led to the current charges began (in the late summer/early fall of 1992) he was on parole.
The investigation that led to the filing of the complaint in the instant action began in October of 1992. Agents Robert Silano and William de Freitas decided to open this investigation after Aaron Mouton,
a private citizen who agreed to serve as a confidential informant in the hope that by helping the government he could reduce the time his brother would spend in prison, gave the agents enough information about himself and about Pius Ailemen to persuade the agents that it was appropriate to pursue this matter.
By about mid-October, 1993, arrangements had been made to secure the cooperation of two officers assigned to the Alameda County Narcotics Task Forces: John Gutierrez and Carl Estelle. TR 6:1171; TR 5: 1072-75. Officer Estelle was designated to serve in an undercover capacity; his assignment was to try to develop a relationship with Pius Ailemen and to learn as much as he could about Ailemen's drug trafficking and his "organization."
On October 30, 1992, Mr. Mouton, the confidential informant, introduced Estelle, who was pretending to be interested in drug transactions with Ailemen, to Ellis Quarshie, whom Mouton knew was prepared to act as an intermediary to Ailemen. During this meeting, Estelle expressed interest in buying heroin from Ailemen and Quarshie told Estelle that Ailemen generally dealt in large amounts of heroin. Quarshie indicated that he would provide Estelle with a sample of the heroin that Ailemen had for sale; Quarshie also told Estelle that Ailemen was looking for a source of cocaine. At the close of this meeting, Estelle told Quarshie that Estelle "would be getting in touch with Quarshie through" Mouton. Aff. at 11.
Estelle made no effort to contact Quarshie for more than a month. On December 2, 1992, Mouton telephoned Quarshie at his place of work and asked if Estelle could call Quarshie. Quarshie agreed. Ex. 20. On December 3, 1992, Estelle called Quarshie at work and arranged to meet Quarshie at his house that evening. Quarshie gave Estelle his home phone and address. When Estelle went to Quarshie's house that night, Quarshie gave him a sample of the heroin that Ailemen had for sale. Aff. at 11-12. Quarshie also indicated that Ailemen was ready to do business -- but that Quarshie "wanted to get Estelle and Pius together because he (Quarshie) didn't want to be in the middle of the future transactions." Aff. 13.
Later in the evening of December 3, 1992, Quarshie contacted Estelle by phone and asked to meet the next day. On December 4, 1992, when Quarshie and Estelle met, Quarshie gave Estelle the price that Ailemen would charge for one ounce of heroin ($ 6,000) and told Estelle (again) that Ailemen was ready to do business. Quarshie also told Estelle that after the first or second transaction, Ailemen would be "willing to front one half" of the heroin Estelle purchased. Aff. at 13-14; Ex. 77. At this meeting Quarshie "again stated that he (Quarshie) would prefer that 'Pius' and UCA Estelle do their own business so that Quarshie would not be responsible for the heroin if something went wrong." Aff. at 15.
On December 7, 1992, Aaron Mouton reported to the DEA investigators that Quarshie had repeatedly been trying to reach him by phone, apparently anxious to arrange for drug transactions between Ailemen and Estelle -- but that Mouton had not returned the calls. TR 2:326-27.
Between the 6th and the 10th of December Quarshie and Estelle had several phone conversations, during which Estelle pretended to be in Los Angeles. Aff. at 15-18. On December 10, 1992, Estelle went to Quarshie's house for a second time and received yet another sample of heroin, this from the new batch that Ailemen had for sale. On this occasion Quarshie told Estelle that the heroin was transported by couriers who body-wrapped it. He also told Estelle, again, that Ailemen would front half the heroin after the first transaction had been completed. Aff. at 18-20; TR 2:238. The next day Quarshie and Estelle met again. In addition to giving Estelle more information about prices and making arrangements for the one-ounce purchase on the 12th, Quarshie told Estelle that Ailemen got heroin from New York. Aff. at 20-22.
By following Quarshie, agents had identified the apartment building (the Park Bellevue Tower) in Oakland where Ailemen resided. Officer Gutierrez identified the on-site manager of the apartment building, Nordahl Washington, then checked with other officers to determine whether Mr. Washington could be trusted with confidences. On December 11, 1992, after learning that Mr. Washington was completely trustworthy, officer Gutierrez visited the Park Bellevue Tower to introduce himself to Mr. Washington and to ask for information about Pius Ailemen. TR 6:1181-83; 1203. During this visit, Mr. Washington identified and described the layout of the apartment in which Ailemen lived, provided two of Ailemen's telephone numbers (one for the residence, one for his cellular phone), reported that Ailemen always used money orders to pay his $ 1,400 monthly rent, alerted officer Gutierrez to the fact that Ailemen's apartment was one of only three in the building that was equipped with an alarm, and identified two vehicles that Ailemen drove. Ex. 22 (and Gov.'s Y); TR 6:1182 - 83.
The next day, December 12, 1992, undercover agent Estelle drove to Ellis Quarshie's house to purchase the ounce of heroin. After Quarshie handed him the heroin, Estelle paid Quarshie the $ 6,000 in cash, plus a $ 200 bonus for making the arrangements with Ailemen. Gov.'s Ex. S; Aff. at 23-24. Shortly after Quarshie counted part of the money, Ailemen phoned and told Quarshie that he was on his way over and wanted to meet Estelle. Ailemen also spoke with Estelle on the phone. A few minutes later Ailemen arrived at the house. In the ensuing conversation he told Estelle that he wanted to acquire two to four kilos of cocaine for distribution in Europe and that he would be willing to trade heroin for cocaine if Estelle was interested in handling the transaction that way. Estelle indicated that he would contact possible sources in Los Angeles and try to supply the cocaine that Ailemen needed. Ailemen also told Estelle that he was going to New York to get more heroin that he had about one kilo for sale now, that he preferred selling heroin in kilo or half-kilo amounts, and that he would like to see Estelle make purchases at that level so he could get the wholesale price from New York. Gov.'s Ex. S.
During this conversation Ailemen also told Estelle that his name was Pius and that Estelle could call him "P." Id. Before Estelle left this meeting he told Quarshie that he would call him within an hour to let him know whether he (Estelle) would be able to supply the cocaine that Ailemen wanted. Id. ; Aff. at 27. Later that day Estelle called Quarshie to tell him that the cocaine he thought he might be able to get for Ailemen was not available because it already had been distributed. He also told Quarshie that he would be going to Chicago for a while but would keep in touch. Gov.'s Ex. E.
On December 14, 1992, officer Gutierrez made another visit to Nordahl Washington at the Park Bellevue Tower. When he arrived he saw a black male leave the building and get into the BMW that Washington had identified as one of the cars Ailemen used. Washington told Gutierrez that the man who drove off in the car was an associate of Ailemen's. Officer Gutierrez subsequently learned that the man he saw on this occasion was Nathaniel Iheukwu. TR 6:1194-95. Later in the day on December 14th officer Gutierrez used the license plates of the vehicles that Nordahl Washington had identified to learn from DMV records that the white BMW was registered to "Lorelo [sic, really Loreli] M. Washington."
Ms. Washington was the common law wife of Nathaniel Iheukwu. Ex.5-B at 30. Iheukwu and Loreli Washington had been identified by the DEA in the 1989 investigation as likely participants in Ailemen's drug trafficking. Ex. 5-B at 29-30. Gutierrez' research through DMV records on the 14th also disclosed that the Alfa Romeo that Ailemen drove was registered to Kelly Lambert, who also had been identified as a likely participant in Ailemen's drug trafficking in the 1989 investigation. Ex. 23; Gov.'s Ex. Y; Ex. 5-B at 29.
During this visit on December 14, 1992, Nordahl Washington gave officer Gutierrez a key to the building (common areas) and an access device for entering the garage. Ex. 23; TR 6:1182-83. Officer Gutierrez also had a conversation at this time with John Shahoian, the property manager of the complex, who "stated that he [and Nordahl Washington] would assist in anyway possible." Ex. 23; TR 6:1184.
By December 8, 1992, Agent Silano, with some assistance from Agent de Freitas, had drafted the proposal to have the investigation of Pius Ailemen and his trafficking associates designated as an OCDETF matter (Organized Crime Drug Enforcement Task Forces). At least two-thirds of this proposal consisted of a virtually verbatim copy of the body of the proposal for OCDETF designation of the earlier investigation that DEA Agent William Iseri had written in December of 1988.
By December 21, 1992, this second investigation of Pius Ailemen had been approved as an OCDETF matter -- with seven different federal law enforcement agencies (in addition to the DEA and the Alameda County Narcotics Task Force) agreeing to participate.
Sometime in December of 1992 the investigators installed a pen register on the two phone lines that Ailemen used from his apartment. Ex. 17 at 35.
Undercover agent Estelle and Ellis Quarshie spoke over the phone five times between December 18, 1992 and January 8, 1993. During this period Estelle pretended to be in Chicago, and then Miami, and pretended to be looking for cocaine for Ailemen. Quarshie told Estelle several times that Ailemen had asked about Estelle and wanted to do more business with him. During their conversation on January 8, 1993, Estelle indicated that he might want Ailemen to arrange to have heroin that Estelle would buy from Ailemen couriered to Chicago. Quarshie said he thought that could be arranged. Gov.'s Ex. E; Gov.'s Ex. J; Aff. at 27-28.
On January 8, 1993, the DEA issued the first of three subpoenas through which it acquired the billing statements for Ailemen's cellular phone. Aff. at 49.
Even though he told Quarshie (over the phone) on January 8, 1993, that he would be back in the Bay Area by January 11th, and would contact Quarshie then, and even though Quarshie left some twenty messages for him, undercover agent Estelle made no effort to contact Quarshie -- and had no contact with him -- between January 8, 1993, and February 3, 1993. Gov.'s Ex. J; Aff. 28-29. During this period, Quarshie had contacted Aaron Mouton, the confidential informant, "almost every day" -- primarily, it appears, in search of a source of cocaine for Ailemen. Ex. 29. Quarshie also contacted Mouton about eight times in February. Id.
In the latter part of January, Mouton met Ailemen face to face on two occasions. On one of these occasions Ailemen was "in the presence of his/her [sic] spouse." Ex. 29. On the other occasion, January 21, 1993, Mouton met with Ailemen and Quarshie at the latter's house. Ailemen told Mouton that he wanted to obtain two kilograms of cocaine from Estelle -- and that he was willing to trade heroin for that amount of cocaine. Ailemen "seemed to be desperate to obtain the cocaine" and indicated that if he could not get it from Estelle he would get it "from his people in Los Angeles." Ex. 53. Ailemen also tried to use Mouton to respond to Estelle's request (made initially on January 8th through Quarshie) for help couriering heroin to Chicago. He told Mouton that he could arrange to have the heroin couriered to Chicago for Estelle and that he could have it delivered there within six hours. He also gave Mouton some information about how he packaged the heroin (for couriering) to conceal its odor. Id.
In late January of 1993 the investigative team took steps to install a hidden video camera in the hallway outside Ailemen's apartment and to secure a mail cover from the Postal Service. The application for the mail cover was submitted on January 28th, but took almost a month to process -- so gathering information through the mail cover did not commence until about February 22, 1993. Aff. at 54-56; TR 4:808. In sharp contrast, the camera outside Mr. Ailemen's apartment appears to have been installed on the day Chief Magistrate Judge Langford signed the authorization order (January 25, 1993). Aff. at 53; Gov.'s Ex. Y. Arrangements already had been made through Nordahl Washington and John Shahoian, the property managers, for the investigators to use a "trash/broom closet" on Ailemen's floor of the building to support this surveillance. TR 6:1183, 1187-89. Sometime in February the agents replaced the "regular video camera" that they initially installed with a "tape delay" model. Officer Gutierrez was required to go to the building frequently to replace the tape. TR 6:1187-90; Gov.'s Ex. Y.
Neither video camera produced a clear picture -- so it was difficult for the agents to identify the people who appeared on the footage. TR 6:1189-90.
On February 3, 1993, the agents re-activated the undercover part of their investigation when Carl Estelle finally returned one of Quarshie's numerous calls. Gov.'s Ex. F; Aff. at 28. After a brief phone conversation, Estelle went to Quarshie's house, where the two men had an extended interchange. Estelle said that he had not been able to obtain the cocaine that Ailemen wanted and that he did not want to play middle-man between Pius and the Colombians from Miami (now allegedly the most likely source of cocaine) -- so he would agree to arrange a meeting between Ailemen and the Colombians, then bow out of the action. Then Estelle expressed an interest in buying 100 grams of heroin from Ailemen and having Ailemen arrange to have one of his couriers get the heroin to Chicago for him. Quarshie indicated that Ailemen appeared to feel that he could work with Estelle and that Ailemen would be willing to arrange for the courier. Gov.'s F. Quarshie also told Estelle that Ailemen was "so ready for you," had come down to Quarshie's house asking for Estelle, and that "he was really waiting for you . . . ." Id. Estelle said he would want to meet the woman who would serve as the courier and Quarshie assured him that Ailemen would be agreeable to that.
The next day, February 4, 1993, Quarshie advised Estelle, over the phone, that the price for the 100 grams of heroin that Estelle wanted to buy from Ailemen would be $ 21,000. Aff. at 31.
The next conversation between Estelle and Quarshie was on February 8, 1993. Estelle asked if Quarshie had a heroin sample or if Ailemen was available to meet that night. Quarshie said that Ailemen was busy with other matters, but that "he really wants to see you" and that maybe they could arrange for a meeting the next day. Gov.'s G.
On February 9th, Estelle met Quarshie and Ailemen at Quarshie's house. Estelle told Ailemen that the Colombians from Miami were interested in trading cocaine for heroin and might be willing to meet with Ailemen in Monterey or in the Bay Area, but Ailemen said he did not want to meet with anyone from Miami because the likelihood of government surveillance was too great. Later in the conversation Ailemen told Estelle that Ailemen's heroin was located in New York and suggested that "if the Colombians are serious, that it's possible that we could meet out there." Gov.'s T. Estelle and Ailemen also discussed the possibility of buying cocaine from Tijuana -- and Ailemen suggested that he and Estelle pool some money and send some of Ailemen's female couriers to Tijuana to buy the cocaine. Ailemen also explained how he used white female couriers because the authorities are not suspicious of them. Id. Estelle asked Ailemen for the price of 100 grams -- and Ailemen asked Estelle why he wasn't buying in larger quantities. Id.
Earlier on February 9th officer Gutierrez had gone to Ailemen's apartment building to change the video tape. While in the building, he spoke with Nordahl Washington, who informed him that Ailemen had had a lot of visitors the preceding Friday and Saturday evening, and that one of Ailemen's guests on Friday had been a white female in her twenties who drove a 1980's model Volkswagen with a licence plate number that Washington gave officer Gutierrez. After returning to his office, officer Gutierrez learned through DMV records that the vehicle that Washington had identified was registered to Tina Louise Tauer. Gov.'s Y. Tina Tauer had been identified by the DEA during the 1989 investigation as a likely criminal associate of Ailemen's -- and the DEA's NADDIS
file on her included this entry from April of 1990: "Allegedly involved heroin trafficking with Tiffany Valentine for Pius Ailemen org." Ex. 86; Ex. 48.
On February 11, 1993, Estelle went to Quarshie's house, where he purchased the 100 grams of heroin (for $ 21,000) directly from Ailemen. Gov.'s U; Aff. at 37-38. During the accompanying conversation, Ailemen told Estelle that the heroin had arrived at about the same time as a hijacked plane and that all the attention was on the hijacked plane. He also told Estelle that the heroin had arrived in the Bay Area from New York at about three or four o'clock on the afternoon of February 11th. Gov.'s U; Aff. at 38. Ailemen further told Estelle that if Estelle's people in Miami wanted heroin, Ailemen could get it there. In addition, he indicated that at that time he "had six to eight kilos of heroin, and that he wanted to get a warehouse to keep the dope in one day." Id. Toward the end of the conversation Estelle expressed an interest in getting cocaine from the suppliers in Tijuana; Ailemen said that he could easily send "his girls to Tijuana to pick up the cocaine." Id. Finally, Estelle told Ailemen that in the upcoming week he (Estelle) would like to meet with Ailemen and the "girl" who would courier the heroin Estelle had just bought to Chicago.
Ailemen indicated that all he needed was a half-day notice. Id. ; Aff. at 38-39.
The next contact between undercover agent Estelle and the defendants occurred on February 16, 1993, when Estelle called Quarshie to tell him that Estelle wanted to courier the 100 grams of heroin to Chicago that Friday, February 19th. Gov.'s H. After a brief conversation, Quarshie called Ailemen, then paged Estelle. When Estelle returned the call, Quarshie, without any prompting or encouragement from Estelle, gave Estelle Ailemen's phone number (the cellular phone) and asked Estelle to call Ailemen. Quarshie told Estelle that Ailemen was expecting Estelle's call. Id. Estelle then called Ailemen. In addition to confirming that Estelle wanted to courier the 100 grams of heroin to Chicago on the 19th, Ailemen asked Estelle if he had been able to locate the cocaine that Ailemen wanted. When Estelle said no, Ailemen indicated that he would travel to Los Angeles on the 17th of February, the next day, to get what he needed there. Then Ailemen indicated that because he had to pay someone right away he wanted to sell Estelle (or his people) another 100 grams of heroin. Ailemen also indicated that if Estelle's people would arrange for payment to Ailemen's courier in Chicago (that Friday, after she transported Estelle's 100 grams), Ailemen would charge only $ 16,500 for the second hundred grams (instead of the $ 21,000 that Estelle had paid on February 11th). Id. Estelle said he needed to make a call to check with his people and that he would get right back to Ailemen.
Less than ten minutes later, Estelle called Ailemen again. He told Ailemen that his people did not want to purchase more heroin at that juncture. Instead, they wanted to "check . . . out" the heroin Estelle had recently bought from Ailemen. Ailemen indicated again that he was going to Los Angeles the next day -- but assured Estelle that he would bring the courier for the Chicago trip to Quarshie's house early Friday morning so Estelle could meet her and so they could finalize the details for transporting the heroin. Id.
On Thursday, the 18th of February, Estelle called Quarshie (twice) to confirm arrangements for transporting the heroin to Chicago the next day. During one of these conversations, Estelle indicated that after the trip to Chicago he would be out of town for a while, but promised that he would have a bottle of liquor sent to Quarshie's house so that Quarshie could celebrate the arrival of his wife (who was joining him from Africa). Gov.'s H.
On Friday, February 19, 1992, at about 5:30 a.m., Estelle rode in a cab (driven by another undercover agent) to Quarshie house. Gov.'s V; Ex. 17, at 23. A few minutes after he arrived, Quarshie, Ailemen, and a white female courier, Kellee Cooper,
arrived at Quarshie's house. Estelle gave the purported heroin (the investigators had substituted a look-alike substance for the real heroin -- so what was transported to Chicago was in fact not heroin) to Ailemen, who gave it to Cooper, who put it inside the front part of her pants. As Ailemen put Estelle and Cooper in the cab for the ride to the airport, he again urged Estelle to buy more heroin. Gov.'s V; Aff. at 40.
The cab, still driven by the undercover officer, took Estelle and Cooper to the airport, where they purchased tickets to Chicago.
During the flight, Estelle sat next to Cooper and told her that they would be met in Chicago by the female courier who would transport the heroin to Miami. Estelle indicated that he had not moved drugs in this way before, so his courier would ask Cooper for instructions. Cooper told Estelle that "lately she has been working with new girls (couriers) who were very calm." Gov.'s V. She also told Estelle that she had been working with Ailemen for a long time, that she had transported both drugs and money for him, and that she had been to many cities, including London. Id.
Once in Chicago, Estelle and Cooper went to the O'Hare Marriott Hotel, where they met undercover DEA agent Sue Mitchell (working out of the Chicago office) - who was posing as the courier Estelle had hired to transport the heroin from Chicago to Miami. Mitchell took Estelle and Cooper to a room she had rented in the hotel -- a room in which the DEA had installed a video (and audio) camera. TR 3:546; Ex. 17 at 27. On tape, Cooper gave Mitchell and Estelle detailed instructions about how to smuggle drugs and how to act if stopped by law enforcement agents. She emphasized to Mitchell the importance of keeping the narcotics on her person -- of never putting the drugs she was smuggling in her purse or "in anything that would be away from her." Gov.'s V; Aff. at 43; TR 3:546-48.
Estelle paid Cooper $ 1,000 for her work as a courier and gave her money to buy a return ticket. Gov.'s V. At Estelle's suggestion, Cooper called Ailemen from the hotel room. After telling Ailemen that nothing had gone wrong, she put Estelle on the phone. Ailemen again urged Estelle to buy more heroin, and again said he could arrange to have it couriered to Chicago or Miami. Estelle assured Ailemen that he (Estelle) would call Quarshie in a few days. Gov.'s Ex. V; Aff. 43-44. There is no evidence that Estelle made that promised call -- in fact, he apparently had no contact with Quarshie for about a month. Gov.'s W.
Despite Ailemen's obvious eagerness to engage in additional transactions with Estelle, the willingness with which he and Cooper had explained how they smuggled drugs and cash, and Ailemen's apparent trust of Estelle, the undercover agent made no effort after February 19, 1992, to buy drugs from Ailemen, to sell drugs to him, to trade drugs with him (cocaine for heroin),
to 'joint venture' a purchase from Tijuana, to meet Ailemen in New York, or to get him together with any purported buyers (from Miami, Chicago, Los Angeles or anywhere else). Agent Silano testified in the hearing before me that his supervisor at the time, Larry Holifield, refused, after the trip to Chicago, to permit the investigative team to spend more money in drug transactions with Ailemen. TR 5:1002-1004; TR 5:992.
On February 23, 1993, the core members of the investigative team, agents Silano and de Freitas, as well as officers John Gutierrez and Carl Estelle,
met to discuss the overall status of the investigation. They "discussed and exchanged information, surveillances for the next few weeks, and future plans. [They] then observed the video recording regarding the courier transport to Chicago, once in the hotel room." Gov.'s Y (Gutierrez' report dated 23 Feb. 93). I find, based on the major turn the investigation took after this meeting, as described below, as well as Agent Silano's admission that he began drafting the affidavit shortly after the Chicago trip,
that it was at or shortly after
this meeting that Agent Silano decided to seek authorization for a wiretap and decided to shift the center of the investigation away from undercover and traditional field work and toward interception of Ailemen's telephone conversations.
On February 24, 1993, the day after the meeting described in the previous paragraph, the investigative team secured authorization from Chief Magistrate Judge Langford to install a pen register on Ailemen's cellular phone number. Aff. at 45.
During a surveillance on February 26, 1993, agents saw the BMW that was registered to Loreli Washington parked in front of Ailemen's apartment building. They also saw Ailemen and "his associate" (later identified as Nathaniel Iheukwu)
using a telescope from Ailemen's apartment to scout the area around the building before they went downstairs and drove together in the BMW (using evasive, counter-surveillance driving techniques) to a check cashing business on Webster and Broadway in Oakland. Ex. 34; Gov.'s Y. Later in the day Gutierrez spoke with Nordahl Washington, who gave him information about movement of furniture in and out of Ailemen's apartment and about "The Packaging Store" from which the furniture had come. Gov.'s Y.
The investigative team made its last effort to surveil Ailemen on March 3, 1993. Agents again followed him from his apartment; again he rode in the BMW registered to Loreli Washington, and again his companion appeared to be Nathaniel Iheukwu. During the first part of the surveillance the agents saw Ailemen and Iheukwu carry "large canvas bags" to the BMW and drive to an address in downtown Oakland. Then Ailemen and Iheukwu drove back to Ailemen's building. After a brief period there, they drove to San Francisco, where they met a young, attractive, light complected black female
and went into a restaurant. The driver of the BMW again had used counter-surveillance driving techniques -- but they were unsuccessful, as the law enforcement team was able to keep track of Ailemen and his companion at all times. The surveillance was terminated, after less than two hours, when Ailemen and his two associates went into the restaurant. Ex. 47; Gov.'s Ex. Y.
On March 8, 1993, when he was at Ailemen's apartment complex to change the video tape, Gutierrez saw Ailemen "and his associate" (again, apparently, Nathaniel Iheukwu) arrive in the BMW registered to Loreli Washington and enter the building. Gov.'s Y. When he visited the building on March 11, 1993, again to replace the video tape, Gutierrez was given information by Nordahl Washington about a white female associate of Ailemen's who had visited the building about a week earlier. Washington provided the year, make, model, color, and license plate number of the vehicle the woman had driven. Gov.'s Y.
On March 18, 1993, as promised earlier, Estelle sent a bottle of Courvoisier to Quarshie so that he and his wife could celebrate her arrival from Africa. An undercover officer, Stephanie Lovett, posing as Estelle's girlfriend, made the delivery, by herself, to Quarshie's house. She was there less than five minutes. Six undercover officers surveilled this delivery -- apparently for the purpose of assuring Lovett's safety. Gov.'s K and Gov.'s W (these exhibits are identical).
On March 23, 1993, while he was on the premises to change the video tape, Gutierrez saw Iheukwu drive the BMW registered to Loreli Washington out of the parking garage in Ailemen's apartment building. Gov.'s Y.
The investigators abandoned efforts to record traffic into and out of Ailemen's apartment on video tape (through the camera in the hall) at the end of March of 1993. Gutierrez and Silano testified that the camera remained in use until June 11, 1993, when a private investigator that Ailemen had hired discovered it,
but the documentary record strongly supports an inference that no taping occurred and no tapes were changed after March 27, 1993. See, Exs. 84 and Gov.'s Y.
On April 8, 1993, Estelle and undercover agent Lovett, still posing as Estelle's girlfriend, went to a restaurant for a social dinner with Quarshie and his wife. During the dinner, "Quarshie stated that 'Pius' on numerous occasions had asked about UCA Estelle doing more 'dope dealing' (business). 'Pius' was very interested in continuing to do more business (dope dealing) due to the loss of some of his ('Pius') customers." Ex. 73, third page from the end; Aff. at 44-45.
On April 15, 1993, Assistant United States Attorney Nandor Vadas for the first time presented evidence arising out of this investigation to the grand jury. Agent Silano was the principal witness. Ex. 17. He described substantial parts of the investigation up to that point and gave the grand jurors detailed information from the principal undercover transactions. In addition, he stated that he was "presently preparing an affidavit to try to monitor Mr. Ailemen's cellular telephone. We're in the process of doing that now." Ex. 17 at 41. He also told the grand jurors about the size ($ 1,800 to $ 3,000 per month) of Ailemen's cellular phone bill and about his suspicion that Ailemen paid those bills with money orders that he obtained at the check cashing business to which he had been followed. Ex. 17 at 35, 43-44. He indicated, however, that he had not "gotten back yet" information about these negotiable instruments. Id.
During his testimony Agent Silano also disclosed that the investigators had underway substantial efforts to gather data about and to analyze Ailemen's use of his cellular phone and the phone lines in his apartment. The agent told the grand jury, for example, that examination of the data generated by the pen register on Ailemen's home phones showed "an extensive array just from states in New York, Washington D.C., Mexico, Houston, Texas, Sweden, Nigeria, Baltimore, Savannah, Georgia, Chicago, Newark, United Kingdom, including London, Canada, Brazil." Ex. 17 at 35. Significantly, he also suggested that he was feeling some frustration with the level of responsiveness he was receiving from other DEA offices. While his team had requested "our parent offices in different states and different countries to obtain subscribers of the phone calls that [Ailemen had] been making,"
he reported that he was
"still awaiting some of these subscribers to come back. You know, they trickle in.
We have overseas offices in approximately 127 different countries in the world, DEA does, and a lot of time, through our telegraph system and individuals being on leave and stuff, these things don't come in as fast as we need them." Ex. 17 at 35 and 36.
Even without all the information they needed from other offices, however, the analysis of the phone records had revealed apparently important calls to identifiable numbers in New York and "the Maryland area"
at the time Ailemen was negotiating the sale of the 100 grams to Estelle (which also was the time Ailemen received a shipment of heroin through Kennedy Airport in New York). Ex. 17 at 19-20, 35-36.
In his testimony to the grand jury on April 15, 1993, Agent Silano also reported that (1) Ailemen had been followed to "a money laundering, excuse me, scratch that, a check cashing establishment, alleged money laundering place,"
(2) that he had a United Mileage Plus account (which the agents had not yet researched),
(3) that he used Sun Trips travel agency (that the agents had not yet checked out),
(4) that Ailemen and his associates might be using "a financial group called the Benham Group" and the College Savings Bank of New Jersey,
(5) that Ailemen had been "receiving Express Mail packages extensively to his house," which "could be an array of things," but the OCDETF group hadn't yet "really explored that with Federal Express or UPS or these other carriers,"
and that (6) "concerning couriers, we have -- we have approximately seven couriers to date identified that we feel that are current from the last investigation that are possible hits."
Agent Silano further stated that an alert for all these couriers had been posted through the El Paso Intelligence Center (EPIC) -- so that if any of them came into this country using their real name (or a known alias) they could be stopped and questioned or their movements tracked. Ex. 17 at 37.
Finally, Agent Silano told the grand jury that during one of their undercover meetings Ailemen had told agent Estelle that "around the end of January, he [Ailemen] had about a million dollars worth of heroin that was taken off by the police,"
and that the investigative team had learned that on January 30th a Nigerian man named Francis Idialu, "who gives an Oakland address," was arrested at Kennedy airport in New York when he was caught trying to smuggle 1.65 pounds of heroin into this county. Ex. 17 at 37-38. The agent told the grand jurors that the investigative team was "in the process of interviewing this individual"
to see if he could provide information about Ailemen's trafficking organization generally or about events that had transpired in this case. Ex. 17 at 38.
On May 8, 1993,
Quarshie contacted confidential informant Aaron Mouton and told him that Ailemen wanted to do more business. Mouton allegedly construed this inquiry to reflect Ailemen's interest in buying cocaine from Mouton. In a debriefing two days later, agents Silano and de Freitas told Mouton to tell Quarshie that Ailemen should contact Estelle. Gov.'s L.
On May 11, 1993, a representative of Cellular One contacted Agent Silano to inform him that on that day Ailemen had paid his $ 2,000 phone bill in cash -- and had taken the money out of a bag that appeared to contain some $ 8,000 in additional cash. Gov.'s M.
During the week of May 25, 1993, Agent Silano asked Aaron Mouton to contact Quarshie in order to learn which "dialects" Ailemen used in his drug trafficking. Gov.'s Ex. N. Mouton contacted Quarshie, who told him that he and Ailemen spoke in "pigeon English" in order to conceal the nature of their conversations from law enforcement and from other drug traffickers. Id. Silano wanted this information so he could arrange to have the appropriate interpreter(s) available during the wiretap. TR 4:838-39; TR 5:955-56.
On May 26, 1993, a representative of Cellular One contacted the investigative team to report that Ailemen had complained to a customer service representative that he was experiencing a 1-3 second delay in service and that he thought his phone was being monitored. Aff. at 47. On May 27, 1993, in response to this information, the agents temporarily "turned off" the pen register on Ailemen's cell phone. Id.
On June 3, 1993, agents Silano and Gervacio, accompanied by AUSA Nandor Vadas, traveled to New York to interview Francis Idialu in the presence of his attorney. During the interview Mr. Idialu told the investigators that he had not been in the Bay Area since 1989, that he had resided in Brooklyn for several years, and that he no longer had "any contacts and/or associates in the Oakland, California Bay Area." Ex. 81, report dated 6/17/93. He also told the investigators that on two occasions, both after he had left the Bay Area, he had attempted to smuggle heroin into the United States. On the earlier occasion, he had ingested balloons; on January 30, 1993, he had transported the heroin in his suitcase. Nothing he said during the interview even remotely suggested a connection with Pius Ailemen. Id. ; Ex. 42; TR 4: 840-51.
On June 11, 1993, Nordahl Washington contacted officer Gutierrez to alert him to the fact that a few days earlier Ailemen had told Washington that he knew his phone was tapped, that he knew he was being watched, and that he had hired a private investigator who had discovered the camera hidden in the "exit" sign in the hallway near the entrance to his apartment. That day Gutierrez examined the monitor and video recorder in the broom closet and found that nothing had been disturbed there. Gov.'s Y, second to last page.
On June 16, 1993, Gutierrez began making arrangements with the manager of an inn near Ailemen's apartment building to secure rooms from which the wiretap operation could be logistically supported and monitored. Gutierrez also learned on this date from Nordahl Washington that Ailemen had continued to press for information about the camera and about whether the government had had a warrant to install it. Gov.'s Y, last page.
Sometime in the first half of June of 1993 Agent Silano submitted what was both the first and the final draft of the affidavit to AUSA Nandor Vadas for his review. Up to that point, Agent Silano had been assisted in drafting the affidavit only by a legal technician, who helped add some "boilerplate" passages that were routinely used in affidavits of this kind. Agent Silano had not submitted rough drafts of any portions of the affidavit to Mr. Vadas earlier in the spring. When he finally had a chance to review Agent Silano's affidavit, Mr. Vadas made virtually no changes. In about mid-June he and Agent Silano sent the proposed wiretap affidavit to authorities at DOJ and DEA in Washington for review, feedback, and approval. Government counsel in Washington asked ...